2018 New Mexico Statutes
Chapter 4 - Counties
Article 34 - Change of County Seats
Section 4-34-1 - Petition; number of signers; calling of election; deposit in certain cases; deeds to property for buildings; prohibited removals; limitation on elections.]

Whenever the citizens of any county in this state shall present a petition to the board of county commissioners signed by qualified electors of said county equal in number to at least one-half the legal votes cast at the last preceding general election in said county, asking for the removal of the county seat of said county to some other designated place, which petition shall be duly recorded in the records of said county, said board shall make an order directing that the proposition to remove the county seat to the place named in the petition, be submitted to a vote of the qualified electors of said county at the next general election, if the same is to occur within one year of the time of presenting said petition, otherwise at a special election to be called for that purpose at any time within two months from the date of presenting said petition: provided, that whenever it is proposed to remove a county seat of any county which has public buildings consisting of a courthouse and jail, the original construction of which cost said county more than the sum of thirty thousand dollars ($30,000), such cost to be ascertained from the records of the board of county commissioners of said county, then before said board of commissioners shall make such order so submitting such proposition to remove the county seat, to the qualified voters of said county, [the board of commissioners] shall require from the petitioners or the persons interested in the removal of said county seat a deposit of forty thousand dollars ($40,000) in money, which said deposit shall be placed in the treasury of said county, which said sum of money when so placed in said treasury shall be used in the construction of a courthouse and jail in the event that the proposition for the removal shall receive a majority of the votes cast at such election, but such deposit shall not be required as a condition precedent to submitting such proposition for the removal in counties which have no courthouses and jails, the cost to the county of which, as ascertained from the records of said county commissioners is less than said sum of thirty thousand dollars ($30,000) as aforesaid; but the same shall be required in all cases when it is proposed to remove a county seat from a point situated on a railroad to another point also so situated: provided, further, that the city, town, village or place named in the petition to which it is proposed to remove said county seat shall be at least twenty miles distant from the then county seat of said county and said petitioners or persons interested in the removal of said county seat shall cause to be conveyed to said county, by a good and perfect title, in the event that the proposition for the removal shall receive a majority of the votes cast at such election, sufficient suitable land to be accepted, if containing as much as three-fourths of an acre for courthouse, jail and other buildings for such county, the deed for which shall be filed with and accepted by the board of county commissioners before calling said election which deed to be redelivered to the grantor therein named in case said proposition to remove said county seat fails to receive a majority of the votes cast at such election, and that no proposition to remove a county seat from a city, town, village or place, situated on a railroad, to one not so situated, shall be entertained or voted upon, and that no vote shall be ordered on substantially the same proposition more than once in ten years.

History: Laws 1897, ch. 6, § 1; C.L. 1897, § 630; Laws 1909, ch. 80, § 2; Code 1915, § 1140; C.S. 1929, § 33-3501; 1941 Comp., § 15-3201; 1953 Comp., § 15-34-1.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — New Mexico Const., art. X, § 3 provides that where there are county buildings, three-fifths of the votes are necessary for removal of the county seat. It also limits removal elections to once in eight years.

Cross references. — For issuance of bonds for construction of buildings, see 4-34-3 NMSA 1978.

For acceptance of bonds and deeds to grounds in lieu of cash contribution, see 4-34-9 NMSA 1978.

For constitutional provisions for removal of county seats, see N.M. Const., art. X, § 3.

Constitutionality of article. — The intent of the legislature was to apply the law to all cities and counties similarly situated, having a present application to all cities within the provisions of the act and a future application to all cities in the territory attaining similar conditions. The necessity for the discrimination made in this act is apparent and fully justifies its enactment as general legislation which it purports to be. Codlin v. Kohlhousen, 1899-NMSC-008, 9 N.M. 565, 58 P. 499, appeal dismissed, 181 U.S. 151, 21 S. Ct. 584, 45 L. Ed. 793 (1901).

Validity. — This section is valid and constitutional. Gray v. Taylor, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

This section was not special or local by reason of the 20-mile limitation. Gray v. Taylor, 1910-NMSC-069, 15 N.M. 742, 113 P. 588, aff'd on rehearing, 1911-NMSC-020, 16 N.M. 171, 113 P. 588, aff'd, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

This section was not invalid for want of registration of voters at particular election. Gray v. Taylor, 1910-NMSC-069, 15 N.M. 742, 113 P. 588 (1910), aff'd on rehearing, 1911-NMSC-020, 16 N.M. 171, 113 P. 588, aff'd, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

This section was held not invalid for absence of signature of governor and certificate by him as of the date when he received it; nor for the absence of signatures of presiding officers of the legislative council and house, the journals showing passage in both houses. Gray v. Taylor, 1910-NMSC-069, 15 N.M. 742, 113 P. 588, aff'd on rehearing, 1911-NMSC-020, 16 N.M. 171, 113 P. 588, aff'd, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

Effect of constitutional provision. — The constitutional provision relative to removal of county seats "as now or hereafter provided by law" authorized election under this section. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.

Meaning of "general election". — Legislature in authorizing municipalities to change their names and change their county seats by favorable vote at "general election" following appropriate action of the governing body meant the biennial election for choosing county, state and federal officials and representatives. Benson v. Williams, 1952-NMSC-074, 56 N.M. 560, 246 P.2d 1046.

Contents of petition. — Petition to board of county commissioners to call an election to vote on proposition to remove county seat was held sufficient without requesting removal of county seat. Gray v. Taylor, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

Determination of original cost of old building. — In determining original cost of old building, subsequent repairs should not be included. Gray v. Taylor, 1910-NMSC-069, 15 N.M. 742, 113 P. 588 (1910), aff'd on rehearing, 1911-NMSC-020, 16 N.M. 171, 113 P. 588, aff'd, 227 U.S. 51, 33 S. Ct. 199, 57 L. Ed. 413 (1913).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 32, 33.

Prohibition to restrain action of administrative officers as to relocation of county seat, 115 A.L.R. 33, 159 A.L.R. 627.

20 C.J.S. Counties §§ 49 to 62.