2018 New Mexico Statutes
Chapter 4 - Counties
Article 33 - Creation or Change of Counties
Section 4-33-3 - Contest; notice of election.
Immediately upon the filing of such petition, it shall be the duty of the county commissioners with whom such petition is filed to cause a notice to be published in some newspaper or newspapers of general circulation in each county affected. Within thirty (30) days after the publication of such notice, but not thereafter, any resident of either of the counties affected, on behalf of himself and all others similarly situated, may bring an action in the district court of the county in which such area proposed to be annexed is located, against any one or more of the signers of the petition, alleging that the petition has not been executed by the requisite number of signers or that the description of the area to be annexed is not accurately described or that the conditions described in Section 1 [4-33-1 NMSA 1978] hereof do not exist.
The judge, after hearing, shall make a determination as to whether the allegations of the petition are well taken. If he shall determine that the allegations of the petition are well taken, he shall enter an order, and if the same be not stayed, it shall be the duty of the county commissioners to call an election to be held within 30 days within the county of the area proposed to be annexed, and shall cause a notice of election to be published two (2) times in a newspaper of general circulation in said county, the last publication thereof to be at least seven (7) days before the date set for the election. Such notice shall specify the polling places, which polling places shall be not fewer than there were in said county at the last general election. At such election all qualified electors who reside within said county shall be entitled to vote: provided, however, that this act [section] shall not apply in any case where a petition has been filed with any board of county commissioners under Chapter 196 of New Mexico Session Laws of 1947 [4-33-1 through 4-33-7 NMSA 1978] in accordance with the requirements of said act of 1947 and where such a petition has been filed prior to the effective date of this act, the election shall be held under the provisions of Chapter 196, New Mexico Session Laws of 1947.
History: 1941 Comp., § 15-3307, enacted by Laws 1947, ch. 196, § 3; 1951, ch. 148, § 1; 1953 Comp., § 15-33-3.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Notice that the board is required to publish is a notice of the filing with it of the petition mentioned in this section, citing it and its general purpose and object. It should describe the portion of the county proposed to be detached from the named county and attached to the other, and announce that any resident of either county affected within 30 days after publication, but not thereafter, may bring the action mentioned in this section, in the district court of the county in which the affected area lies, challenging, on grounds named in this section, the right to the annexation sought. Youree v. Ellis, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
Hearing and determination as to correctness of petition. — If a contest is filed, the hearing provided for takes place as provided in this section. The judge of the district court of the county in which the proceedings are initiated must, at the hearing, determine whether the allegations of the petition are true. Youree v. Ellis, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
If no contest is filed, then the proponents of the proposed annexation, upon calling the matter, by some appropriate pleading, to the attention of the district court of the county where the annexation proceedings are pending, may initiate the hearing contemplated by this section. Upon such hearing, even though the relief sought is unopposed, the court must determine whether there are jurisdictional grounds for the annexation as its authority to proceed further. Youree v. Ellis, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
Procedure where second petition filed. — Where trial court has held on substantial evidence that a second petition seeking annexation is not an amendment of the first but an entirely new, independent and distinct petition, any defects in the first petition may be laid aside in determining the sufficiency of the second petition. Youree v. Ellis, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
Right to contest annexation election. — Annexation is a special statutory proceeding and the right of contest and the jurisdiction to entertain it must be found in the Act itself. No such right is provided by the Act. Hartley v. Board of Cnty. Comm'rs, 1957-NMSC-028, 62 N.M. 281, 308 P.2d 994.
Sufficiency of findings of trial court. — Trial court findings, although phrased in disjunctive, were sufficiently clear to express intention to find the negative of each of the conditions relied on to support annexation. Stone v. Crenshaw, 1952-NMSC-093, 56 N.M. 707, 248 P.2d 822.
