2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 3 - Vacancies in Local Offices
Section 10-3-1 - Circumstances causing vacancy in local office.

Any office belonging to the class mentioned in Section 10-4-1 NMSA 1978 becomes vacant under any of the following circumstances:

A. by death of the party in office;

B. removal of the officer as provided by Sections 10-4-1 through 10-4-29 NMSA 1978;

C. failure of the officer to qualify as provided by law;

D. expiration of the term of office when no successor has been chosen as provided by law;

E. when the officer removes from the area from which the officer was elected to represent and, in case of an officer serving pursuant to an appointment, when the officer removes from the area the officer was appointed to represent;

F. absence from the political subdivision in which the officer serves for six consecutive months; but this provision does not apply to those officers wherein the law provides that the duties may be discharged by a deputy, when such absence is due to illness or other unavoidable cause;

G. by resignation of the officer; or

H. by an officer accepting and undertaking to discharge the duties of another incompatible office.

History: Laws 1909, ch. 36, § 3; Code 1915, § 3956; C.S. 1929, § 96-107; 1941 Comp., § 10-301; 1953 Comp., § 5-3-1; 2018, ch. 79, § 81.

Cross references. — For temporary abandonment for service in military forces, see 10-6-1 NMSA 1978.

For permanent abandonment of office, what constitutes, see 10-6-3 NMSA 1978.

For incompatible office or service, definition, see 10-6-5 NMSA 1978.

For dismissal, demotion or suspension for conflict of interest, see 10-16-14 NMSA 1978.

The 2018 amendment, effective July 1, 2018, added a section heading, clarified that an officer must live in the area the officer was elected or appointed to represent, and made technical and conforming changes; added the section heading; in the introductory clause, after "Section", deleted "3954" and added "10-4-1 NMSA 1978"; redesignated former Paragraphs [1] through [8] as Subsections A through H, respectively; in Subsection B, after "as provided by", deleted "this chapter" and added "Sections 10-4-1 through 10-4-29 NMSA 1978"; in Subsection E, after "removes from the", deleted "county in" and added "area from", after "the officer was elected", added "to represent", after "in case of", deleted "municipal officers" and added "an officer serving pursuant to an appointment", after "removes from the", deleted "town or city for which he is elected" and added "area the officer was appointed to represent"; and in Subsection F, after "absence from the", deleted "county" and added "political subdivision in which the officer serves", and after "six consecutive months", deleted "and, in cases of municipal officers, absence for such length of time from the village, town or city for which he is elected".

Dual office holding. — The offices of mayor and district attorney of a city are not incompatible and may be held by the same person at the same time, and the fact that the mayor is also district attorney is not ground for ousting him from the mayorality. State ex rel. Chapman v. Truder, 1930-NMSC-049, 35 N.M. 49, 289 P. 594.

Effect on other section. — This section, creating a vacancy for "failure of the officer to qualify as provided by law" does not repeal by implication the last line of 10-3-3 NMSA 1978 providing that an appointive officer shall hold office until "his successor shall be duly elected and qualified according to law." State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Effect where authority to hold over after expiration of term. — During the period in which a public officer holds over after the expiration of his term, under constitutional or statutory authority entitling him to do so until the election and qualification of a successor, there is no vacancy in office which may be filled by an interim appointment. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Reelected county clerk's resignation before new term. — Where a reelected county clerk resigned prior to the beginning of her new term, a vacancy in office was thereby created pursuant to this section and the person properly appointed on the same day as the resignation and qualified pursuant to Section 10-3-3 NMSA 1978 was entitled to hold the office until her successor was duly elected and qualified; therefore, there was no vacancy in the office for the new term. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Effect of death of elected candidate before term begins. — The death of an elected candidate before term of office commences does not seat the minority candidate, but creates a vacancy to be filled as in case of vacancy for any other reason. 1917-18 Op. Att'y Gen. No. 18-2145.

Meaning of "qualify". — The word "qualify" does not refer to eligibility for the office but rather to the performance of the acts which the chosen person is required to perform before he can enter into office (usually the taking of an oath and the filing of a bond). 1963-64 Op. Att'y Gen. No. 63-86.

When judicial successor not yet qualified. — Justice of the peace (now magistrate), properly appointed in 1907, and qualified by giving required bond, was entitled to discharge the duties of the office until his successor was qualified. 1909-12 Op. Att'y Gen. No. 76.

Residence in legal contemplation. — Residence in legal contemplation may be maintained in a locality despite actual physical absence, the mental intent of the person being an important factor in determining residence. 1963-64 Op. Att'y Gen. No. 64-20.

Intracounty move of county commissioner. — The removal of a county commissioner from the district from which he was elected to another part of the county does not create a vacancy in the office. 1912-13 Op. Att'y Gen. No. 12-955.

Resignation of judge of small claims court. — The resignation of the judge of the small claims court caused a vacancy in that office. 1964 Op. Att'y Gen. No. 64-146.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 138, 139.

Resignation from one office as affecting eligibility to another office during term of former office, 5 A.L.R. 117, 40 A.L.R. 945.

Right of officer to resign, 19 A.L.R. 39.

Incompatibility of offices or positions in military service and civil service, 26 A.L.R. 142, 132 A.L.R. 254, 147 A.L.R. 1419, 148 A.L.R. 1399, 150 A.L.R. 1444.

Death or disability of one elected to office before qualifying as creating a vacancy, 74 A.L.R. 486.

Reconsideration of appointment to fill vacancy, 89 A.L.R. 141.

When resignation of public officer becomes effective, 95 A.L.R. 215.

Effect of election to, or acceptance of, one office by incumbent of another when both cannot be held by same person, 100 A.L.R. 1162.

Military service, induction or voluntary enlistment for, as creating vacancy in public office or employment, 151 A.L.R. 1462, 152 A.L.R. 1457, 153 A.L.R. 1429, 154 A.L.R. 1455, 155 A.L.R. 1456, 156 A.L.R. 1455, 157 A.L.R. 1454, 158 A.L.R. 1456, 35 A.L.R. Fed. 649.

Vacancy in public office within constitutional or statutory provision for filling vacancy, where incumbent appointed or elected for a fixed term and until successor is appointed or elected, is holding over, 164 A.L.R. 1248.

Conviction of offense under federal law or law of another state or country as vacating accused's holding of state or local office, 20 A.L.R.2d 732.

Assertion of immunity as ground for removing or discharging public officer or employee, 44 A.L.R.2d 789.

Acceptance or assertion of right to pension or retirement as abandonment of public employment, 76 A.L.R.2d 1312.

Public officer's withdrawal of resignation made to be effective at future date, 82 A.L.R.2d 750.

Incompatibility, under common-law doctrine, of office of state legislator and position or post in local political subdivision, 89 A.L.R.2d 632.

Removal of public officer for misconduct during previous term, 42 A.L.R.3d 691.

67 C.J.S. Officers and Public Employees §§ 74 to 76.