O'BRIEN, C. J.-This prosecution was commenced in a justice's court of Lincoln county upon a criminal complaint charging that "William H. Guyse did, on the fourteenth day of July, A. D. 1892, carry a deadly weapon to wit: a pistol, concealed about his person, within the settlements of said territory and county; that such carrying of said deadly weapon was not within the residence of the said William H. Guyse, or on his landed estate, or in the lawful defense of his person, family, or property; and that such carrying of said. deadly weapon was not done by legal authority,—all of which is contrary to the form of the statute," etc. Upon a trial had before a justice of the peace of Lincoln county on July 15, 1892, defendant was convicted, and fined $50 and costs of prosecution. An appeal was taken to the district court, where a jury trial was had, resulting in a verdict of guilty. From the judgment entered upon that verdict the defendant has brought the cause to this court for review.

RIGHT of officers

Defendant was represented by counsel in the district court. In this court he is not represented, but we learn from the transcript and the brief of to carry deadly the solicitor general that he claims the weapons. right to carry deadly weapons because he is a constable and deputy sheriff. On the trial in the district court it was proved, and admitted by the defendant himself, that he carried a pistol upon his person at the time and place stated in the complaint; but he insists that his conviction was illegal, because he was absolutely entitled to carry it, on account of his official character. This immunity he claims to find in section 10, chapter 30, of the act of 1887, defining the offense, which reads: "Sec. 10. Sheriffs and constables of the various counties, and marshals and police of cities and towns, in this territory, and their lawfully appointed deputies, may carry weapons in the legal discharge of the duties of their respective offices, when the same

may be necessary, but it shall be for the court or the jury to decide from the evidence whether such carrying of weapons was necessary or not, and for an improper carrying or using deadly weapons by an officer, he shall be punished as other persons are punished for the violation of the preceding sections of this act." This section does not afford complete protection, as it leaves it "for the court or jury to decide whether such carrying of weapons was necessary or not." The jury, on hearing all the facts in the case, decided by their verdict that such carrying was not necessary. The court, upon the motion for a new trial, expressly ratified the legality of the conviction. We should think that such unanimity ought to have satisfied defendant of his error, and relieved him of the necessity of compelling us to affirm the judgment. Under the law, no sheriff, constable, or other peace officer, has any more right to carry weapons than a private citizen, except when the same is done in the proper and necessary discharge of his official duties. It is to be regretted that sheriffs, constables, and similar officers throughout the territory, appear to believe that they are in all cases, and under all circumstances, exempt from the operation of the law prohibiting the carrying of deadly weapons. It is a grave mistake, and is too often attended with dangerous consequences. No other reason than the illegality of the conviction on account of defendant's exemption from the operation of the statute being presented for our consideration, it follows that the judgment below is affirmed.

LEE, SEEDS, and FALL, JJ., concur.

[No. 539. August 24, 1893.]

THE BOARD OF EDUCATION OF THE CITY OF SOCORRO, PLAINTIFF IN ERROR, V. CHARLES

A. ROBINSON, DEFENDANT IN ERROR.

LIQUOR LICENSE FEES, RIGHT OF SHERIFF TO COMMISSIONS THEREON.Sections 1, 3, chapter 9, Laws, 1891, providing that any person desiring to sell liquors in any incorporated city shall make due application for a license to the mayor or city counsel, and that every license provided for by the act shall be issued for the period of twelve months by the clerk of the board of county commissioners, upon the order of such board, or by the city, or town clerk, or recorder, upon the order of the mayor, city, or town council, or board of trustees, and shall by such clerk, or recorder, be turned over to the applicant for said license, upon the payment of said license fee, by said applicant, into the hands of the county treasurer, to be covered into the general school fund of the county, dispenses, by necessary implication, with the collection of license fees by the sheriff, as provided in sections 2903, 2904, Compiled Laws, and such officer has no right to make such collections; and where he voluntarily does so, is not entitled to any commission thereon.

ID.-ISSUED BY PROBATE CLERK-ASSUMPSIT TO RECOVER COMMISSIONS COLLECTED THEREON BY THE SHERIFF.-Where, under such circumstances, an action of assumpsit was brought by the board of education of the city of Socorro to recover the commissions, on such license fees, so collected and retained by defendant while sheriff of Socorro county, and it appeared that the licenses were issued by the probate clerk, instead of the city recorder, contrary to the provisions of chapter 9 of the Laws of 1891, supra, and that defendant turned over to plaintiff a portion of said fees,-Held: Defendant, in turning over to plaintiff a portion of the license fees so collected, recognized plaintiff's right to the money, and, by its approval, acted as its agent in collecting the same, or wrongfully received what belonged to plaintiff. In either case defendant is liable in assumpsit for money had and received to plaintiff's use; and, not being entitled to any of the money for collecting it, is bound to pay over to plaintiff the amount retained; and the fact that the licenses were issued by the probate clerk, without any authority to do so, does not affect his liability.

ERROR, from a judgment in favor of defendant, to the Fifth Judicial District Court, Socorro County. Judgment reversed.

The facts are stated in the opinion of the court.

JAMES G. FITCH for plaintiff in error.

Section 3, chapter 9, Laws, 1891, providing that licenses shall not be turned over to the applicants until they have paid the license fees into the hands of the county treasurer virtually makes the licenses collect themselves, and does away with the expenses of assessment and collection under sections 2903, 2904, Compiled Laws, which are clearly repealed.

The defendant had no right to take the licenses and collect the amounts due on them, and, in doing so, acted outside of the scope of his official authority, and is not entitled to any commission as collector, nor to any compensation whatever for his services. Berghauser v. Blankenburg, 86 Cal. 316; 24 Pac. Rep. 1062.

Plaintiff is entitled to all money arising from retail liquor licenses within the city of Socorro. Chap. 25, sec. 35, Laws, 1891; Board of Education of East Las Vegas v. Tafoya, 6 N. M. 292.

except that

In such a case an action of assumpsit will lie for money had and received to plaintiff's use. No privity of contract between the parties is required, which results from the circumstances. Though a common law action, its scope has been so enlarged as to include cases where plaintiff is equitably entitled to the money. 4 Wait's Act. and Def. 507; Gaines v. Miller, 111 U. S. 375; O'Conley v. City of Natchez, 40 Am. Dec. 87; Tuite v. Wakalee, 19 Cal. 693; Pimental v. San Francisco, 21 Id. 352; Tugman v. Nat. Steamship Co., 76 N. Y. 207; Roberts v. Ely, 113 Id. 128.

Both in this and in other forms of action plaintiff can, at his election, sue the wrongdoer, and is not obliged to sue the party who paid over the money. Carver v. Creque, 48 N. Y. 385.

The finding that the payments were voluntary is favorable to plaintiff's right of recovery. Money illegally exacted by an officer under color of authority and the compulsion of legal process can be recovered back. 4 Wait's Act. and Def. And if such had been the case here, defendant might at least have urged that he was liable to the applicants for this money. But these payments being voluntary, though made under a mistake of law, can not be recovered by the applicants. Id. 487.

An officer, who has received public money, can not refuse to pay it over to the person entitled to it on the ground that he collected it under a void authority. Bell v. Railroad Co., 4 Wall. 598; Supervisors v. Bates, 17 N. Y. 242; Ross v. Curtis, 31 Id. 606; People v. Brown, 55 Id. 180; Placer County v. Astin, 8 Cal. 304; McKie v. Monterey County, 51 Id. 275.

Nor can one, who has presumed to act as an officer under the revenue laws, and who has made collections as such, be permitted, when called upon to account, to say that he is a usurper. Cooley on Taxation, 191, 192; Bell v. Railroad Co., 4 Wall. 598; Supervisors v. Bates, 17 N. Y. 242.

H. B. HAMILTON for defendant in error.

The collector of the county is entitled to charge "ten per centum upon all license taxes collected by him." Sec. 2910, Comp. Laws, 1884.

The defendant must have acted in some way as the agent of plaintiff in the receipt of the money to which plaintiff is legally and justly entitled, or that the payment was voluntarily made by the licensee to the defendant, and, if the latter is true, then there must have been an express promise on the part of defendant to pay the money to plaintiff. Sargent v. Stryker, 32 Am. Dec. 404; Moore v. Moore, 127 Mass. 22.

The person desiring to take out a liquor license