2019 New Mexico Statutes
Chapter 3 - Municipalities
Article 18 - Powers of Municipalities
Section 3-18-1 - General powers; body politic and corporate powers.
A municipality is a body politic and corporate under the name and form of government selected by its qualified electors. A municipality may:
A. sue or be sued;
B. enter into contracts or leases;
C. acquire and hold property, both real and personal;
D. have a common seal which may be altered at pleasure;
E. exercise such other privileges that are incident to corporations of like character or degree that are not inconsistent with the laws of New Mexico;
F. protect generally the property of its municipality and its inhabitants;
G. preserve peace and order within the municipality; and
H. establish rates for services provided by municipal utilities and revenue-producing projects, including amounts which the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities.
History: 1953 Comp., § 14-17-1, enacted by Laws 1965, ch. 300; 1969, ch. 251, § 2; 1972, ch. 81, § 2.
ANNOTATIONSCross references. — For prohibition of nuisances, see 3-18-17 NMSA 1978.
For sale or lease of property, see 3-54-1 NMSA 1978 et seq.
For tax exemption of property, see N.M. Const., art. VIII, § 3.
For sale of county buildings or lands to municipalities, see 4-47-2 NMSA 1978.
For lease of state lands, see 19-7-54 NMSA 1978.
For unclaimed property, see 29-1-13 to 29-1-15 NMSA 1978.
For limitation of actions in suits against cities, towns and villages, see 37-1-24 NMSA 1978.
For limitation of actions on bonds of municipalities, see 37-1-25 NMSA 1978.
For venue of actions against municipalities, see 38-3-2 NMSA 1978.
For Tort Claims Act, see 41-4-1 to 41-4-29 NMSA 1978.
For donated real property, see 47-1-47, 47-1-48 NMSA 1978.
I. GENERAL CONSIDERATION.
Home rule municipalities. — Powers set forth in this section and 3-17-1 NMSA 1978 are independent municipal powers within the meaning of the home rule amendment because they are powers delegated to municipalities completely independent from the home rule amendment. New Mexicans for Free Enterprise v. City of Santa Fe, 2006-NMCA-007, 138 N.M. 785, 126 P.3d 1149.
This section confers a "police power" upon municipalities to protect their inhabitants and preserve peace and order within the municipal limits. A municipality may adopt ordinances for this purpose under authority of 3-17-1A NMSA 1978. City of Hobbs v. Biswell, 1970-NMCA-086, 81 N.M. 778, 473 P.2d 917, cert. denied, 81 N.M. 772, 473 P.2d 911.
Authority of city. — The city is the sole judge as to what is best for the public health and safety of its inhabitants. Barber's Super Mkts., Inc., v. City of Grants, 1969-NMSC-115, 80 N.M. 533, 458 P.2d 785; Gomez v. City of Las Vegas, 1956-NMSC-021, 61 N.M. 27, 293 P.2d 984.
Statute prescribing procedure. — The rule is well established that where the statute directs in definite terms the manner in which municipal acts are to be exercised, such statutory method must be substantially followed. City of Clovis v. Crain, 1960-NMSC-129, 68 N.M. 10, 357 P.2d 667.
II. CAPACITY FOR SUIT.
Municipality is liable for its negligence when engaged in a proprietary function as distinguished from a governmental function. Murphy v. City of Carlsbad, 1960-NMSC-011, 66 N.M. 376, 348 P.2d 492.
Municipality acts in a governmental capacity: (a) when it performs a duty imposed by the legislature of the state, (b) only when such imposed duty is one the state may perform and which pertains to the administration of government, (c) when the municipality acts for the public benefit generally, as distinguished from acting for its immediate benefit and its private good, and (d) when the act performed is legislative or discretionary as distinguished from ministerial. Murphy v. City of Carlsbad, 1960-NMSC-011, 66 N.M. 376, 348 P.2d 492; Barker v. City of Santa Fe, 1943-NMSC-012, 47 N.M. 85, 136 P.2d 480.
Establishment and maintenance of a municipal park is a proprietary function and a city is not immune to a suit for negligence connected therewith. Murphy v. City of Carlsbad, 1960-NMSC-011, 66 N.M. 376, 348 P.2d 492.
Liability for condition of streets or sidewalks. — The liability of a town or city to damages for injuries which result proximately from the dangerous condition in which, with knowledge actual or constructive, it permits its streets or sidewalks to remain cannot be successfully challenged. Murphy v. City of Carlsbad, 1960-NMSC-011, 66 N.M. 376, 348 P.2d 492 (decided under prior law).
Capacity for suit. — A municipal corporation, having capacity to sue and be sued, may be sued both at law and in equity whenever a cause of action exists against it. The fact that a creditor may not be able to obtain satisfaction of his judgment against a municipal corporation does not affect his right to sue and obtain a judgment. Roswell Drainage Dist. v. Parker, 53 F.2d 793 (10th Cir. 1931).
III. CONTRACTS.
Implied contract. — Where a municipality enacted an ordinance that adopted a comprehensive personnel policy manual that required the municipality to offer to its retiring employees the option of continuing their health care coverage under the municipality's group plan at the active employee premium reimbursement rate; the petitioners, who retired from municipal service, accepted the municipality's offer at the time they retired and before the municipal council enacted an ordinance deleting the retirement insurance provision from the manual; municipal employees were required to be provided with a copy of and acknowledge receipt of the manual; employees were bound by the terms of the manual; the municipality felt bound to comply with the manual; municipal officials made admissions by their statements and conduct that the municipality was obligated to continue paying health insurance premiums for retirees who had accepted the municipality's offer to do so after the retirees had met the requirements of the ordinance existing at the time of retirement; and municipal officials made admissions that provisions of the manual became terms of an employment contract and the retirees had a vested interest in continued health insurance benefits, there was sufficient evidence to show the existence of genuine issues of material fact regarding whether an implied contract was formed and the scope of its terms. Beggs v. City of Portales, 2009-NMSC-023, 146 N.M. 372, 210 P.3d 798.
Ratification of mayoral act. — City council ratified the mayor's termination of a joint powers agreement for the operation of a detention center where the mayor sent a copy of the letter that terminated the agreement to the president of the city council and the city council adopted a resolution in which the city council stated that it supported the termination of the agreement and resolved that the city proceed to transfer the operation and administration of the detention center to the county. Bernalillo BBC v. Chavez, 2008-NMCA-028, 143 N.M. 543, 178 P.3d 828, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674.
Contractual or vested rights not implied. — Retired municipal employees did not have a contractual or vested right to the lifetime reimbursement of health insurance premiums where the municipal ordinance that permitted retired employees to elect to continue their insurance coverage under the municipality's group plan after retirement did not contain express language creating contractual rights private and stated that the ordinance could be altered or modified. Beggs v. City of Portales, 2007-NMCA-125, 142 N.M. 505, 167 P.3d 953, rev'd, 2009-NMSC-023, 146 N.M. 372, 210 P.3d 798..
Municipality has authority to enter into collective bargaining agreement with electrical union respecting its employees engaged in the operation of its electrical utility, when the municipality is operating an electric utility in its corporate or proprietary capacity. Internal Bhd. of Elec. Workers Local 611 v. Town of Farmington, 1965-NMSC-090, 75 N.M. 393, 405 P.2d 233.
IV. UTILITIES.
Rates charged by municipally owned utilities. — Where the municipality owns and operates a water and sewer system, the rates charged by it must be fair, reasonable and just, uniform and nondiscriminatory. The city has the power to set reasonable rates in excess of actual expenditures in furnishing municipally owned utility services, if such rates compare favorably with those received by private utility companies. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Determination of reasonableness. — When read in conjunction with the Public Utilities Act (62-1-1 NMSA 1978 et seq.), Subsection H clearly does not require a municipality to utilize any particular study or methodology to satisfy the standard of reasonableness. Fleming v. Town of Silver City, 1999-NMCA-149, 128 N.M. 295, 992 P.2d 308, cert. denied, 128 N.M. 148, 990 P.2d 822.
V. PREEMPTION.
Local ordinance preempted by federal law. — An ordinance establishing procedures for telecommunications providers seeking access to city-owned rights-of-way caused substantial increase in costs imposed by excess conduit requirements, appraisal-based rent, cost-based application and registration fees and which gave the city free ranging discretion in determining whether or not to accept a registration or lease application was preempted by 47 U.S.C. 353. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004).
Local ordinance not preempted by state law. — Reading the New Mexico Telecommunications Act, 63-9A-1 NMSA 1978 et seq., and N.M. Const., art. XI, § 2 in pari materia with New Mexico's Municipal Code, Chapter 3 NMSA 1978, and N.M. Const., art. X, § 6, the provisions of a Santa Fe telecommunications ordinance, regulating the power to contract with a service provider and to enforce provisions related to land use and rights of way held by the city, were not preempted by state law, inasmuch as they did not purport to usurp New Mexico public regulation commission's power to issue certificates of public convenience and necessity to providers of public telecommunications services or to regulate rates and quality of service for intrastate telecommunications services. Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305 (D.N.M. 2002) affirmed in part, remanded in part, 380 F.3d 1258 (10th Cir. 2004).
Contracts for rates with public utilities. — Cities and towns have power to contract with public service companies for rates to their inhabitants for electrical current for power purposes. City of Albuquerque v. N.M. Pub. Serv. Com'n, 1993-NMSC-021, 115 N.M. 521, 854 P.2d 348; Town of Gallup v. Gallup Elec. Light & Power Co., 1924-NMSC-034, 29 N.M. 610, 225 P. 724.
Leases permitted. — A city or county government has the legal power to enter into a lease agreement for property, with or without improvements, which will be used as a fire station. 1964 Op. Att'y Gen. No. 64-30.
Municipalities or counties may lease equipment or other personal property on a long-term basis. 1966 Op. Att'y Gen. No. 66-20.
A municipality may enter into a long-term lease with the New Mexico boys' school for land and buildings for the purpose of setting up a recreation center for the community and the surrounding area, and which will be under the control and supervision of the municipality. 1968 Op. Att'y Gen. No. 68-33.
Power to make gift not included in section. — Municipal corporations are creatures of statute; they have only the powers with which they are invested by the statutes creating them. Powers of cities and towns are set out in this section. No power to make a gift of any kind is mentioned. 1960 Op. Att'y Gen. No. 60-160.
Regulating construction of state building. — In the absence of a statute specifically authorizing municipalities to regulate construction of buildings of the state, or state institutions, located within the municipalities, such power does not exist in the municipality. 1953 Op. Att'y Gen. No. 53-5847.
Law reviews. — For article, "Rights of New Mexico Municipalities Regarding the Siting and Operation of Privately Owned Landfills", see 21 N.M. L. Rev. 149 (1990).
For article, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970).
For note, "County Regulation of Land Use and Development," see 9 Nat. Resources J. 266 (1969).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 193 to 230, 423 to 489.
Trust, power of municipal corporation to accept and administer, 10 A.L.R. 1368.
Estimates prepared by officers or employees, liability of municipal corporation to contractor for mistake, 16 A.L.R. 1131.
"Emergency," what is within exception to limitation of tax levy, 17 A.L.R. 586.
Torts of independent contractors, liability of municipal corporations and their licensees, 25 A.L.R. 426, 52 A.L.R. 1012.
Injunction against enforcement of illegal municipal tax upon joinder of several affected thereby, 32 A.L.R. 1270, 156 A.L.R. 319.
Insurance, power of municipal corporation to take out liability insurance, 33 A.L.R. 717.
Freeholder's charter as affecting power of city over taxes, 35 A.L.R. 883.
Golf course, power of municipal corporation to establish and maintain, 36 A.L.R. 1301.
Claim barred by limitation, legislative power to revive, 36 A.L.R. 1324, 133 A.L.R. 384.
Sunday observance, power to legislate as to, 37 A.L.R. 575.
Boat or barge, power of municipality to purchase or charter, 39 A.L.R. 1332.
Arbitration, power to submit to, 40 A.L.R. 1370.
Contract exempting municipality from liability for negligence, validity of, 41 A.L.R. 1358.
Detective, power of municipal corporation or authorities to employ, 45 A.L.R. 737.
Ice plant, power of municipality to acquire and operate, 46 A.L.R. 836, 68 A.L.R. 872.
Improvement district organized within its own limits, power of municipality to extend aid to, 50 A.L.R. 1208.
Bathhouses and bathing beaches, liability of municipality in respect of, 51 A.L.R. 370, 57 A.L.R. 406.
Immunity from liability for torts pertaining to governmental functions as affected by constitutional guaranty of remedy for all injuries and wrongs, 57 A.L.R. 419.
Immunity from liability for torts pertaining to exercise of governmental functions, availability to lessee or concessioner, 57 A.L.R. 560.
Judgment, municipality's power to consent or confess, 67 A.L.R. 1503.
Contract extending beyond its own term, power of board to make, 70 A.L.R. 794, 149 A.L.R. 336.
Immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance, 75 A.L.R. 1196, 56 A.L.R.2d 1415.
Extension of service beyond corporate limits, power of municipal corporation, 98 A.L.R. 1001.
Insurance on public property, right to carry, 100 A.L.R. 600.
Extraterritorial activities: municipal corporation as subject to conditions or regulations in force within the territory in which it acts, 101 A.L.R. 430.
Tax illegally exacted, judgment in favor of taxpayer for recovery of, as subject to provisions of statute regarding substance and form, manner of collection or enforcement of judgment against municipality, 101 A.L.R. 800.
Revenue-producing enterprise owned by municipality, legislative control of disposition of revenue from operation of, 103 A.L.R. 581, 165 A.L.R. 854.
Malicious prosecution, liability of municipality or other political unit, 103 A.L.R. 1512.
Quarry operation, implied power of municipality for production of materials needed for carrying out powers expressly conferred upon it, 104 A.L.R. 1342.
Compromise of claim, power of city or its officials as to, 105 A.L.R. 170, 15 A.L.R.2d 1359.
Automobile, use of as a corporate or governmental function, 110 A.L.R. 1117, 156 A.L.R. 714.
"Safe place" statutes as applicable to municipalities when engaged in performing a governmental function, 114 A.L.R. 428.
Loans of money, constitutionality of statute authorizing subdivisions of state to make, 115 A.L.R. 1456.
Notice of injury, continuing character of municipality's negligence and injury or damage therefrom as affecting requirement of, 116 A.L.R. 975.
Immunity from liability for tort, 120 A.L.R. 1376, 60 A.L.R.2d 1198.
Right of municipality to enforce against other party contract which was in excess of former's power or which did not comply with conditions of its power in that regard, 122 A.L.R. 1370.
Joint project or enterprise, power of municipalities to engage in, 123 A.L.R. 997.
Automobile, liability of municipality under statute making owner responsible for injury or damage inflicted by another operating automobile, 147 A.L.R. 875, 159 A.L.R. 1309, 74 A.L.R.3d 739.
Use tax, municipality's power to impose, 153 A.L.R. 619.
Military service of veterans, constitutionality of state statutes providing for use of public funds or other public property of municipality for benefit of persons engaged in, 162 A.L.R. 938.
Auditorium or stadium as public purpose for which public funds may be expended or taxing power exercised, 173 A.L.R. 415.
Assignment of contract with municipal corporation, validity of and construction of statute forbidding, 175 A.L.R. 119.
Lease by municipality, granting or taking of as within authorization of purchase or acquisition thereof, 11 A.L.R.2d 168.
Garage for maintenance and repair of municipal vehicles, operation as governmental function, 26 A.L.R.2d 944.
Gift for maintenance or care of private cemetery or burial lot, or of tomb or of monument, including the erection thereof, as valid trust, 47 A.L.R.2d 596.
Water system, right to compel municipality to extend, 48 A.L.R.2d 1222.
Cemetery: municipal power to condemn land for, 54 A.L.R.2d 1322.
Exchange of real property, power of municipal corporation as to, 60 A.L.R.2d 220.
Pledging parking-meter revenues as unlawful relinquishment of governmental power, 83 A.L.R.2d 649.
Immunities from liability, contractor with municipality as entitled to, 9 A.L.R.3d 382.
Oil, minerals, soil or other natural products within municipal limits, validity of municipal prohibition or regulation of removal or exploitation of as affected by state regulations on the same subject, 10 A.L.R.3d 1226.
Arbitration, power of municipal corporation to submit to, 20 A.L.R.3d 569.
Water pollution: validity and construction of anti-water pollution statutes or ordinances, 32 A.L.R.3d 215.
Eminent domain power as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.
Aircraft flight paths or altitudes, validity of municipal regulation of, 36 A.L.R.3d 1314.
CATV: validity and construction of municipal ordinances regulating community antenna television service (CATV), 41 A.L.R.3d 384.
Diversion of water by municipal corporation or public utility, propriety of injunctive relief against, 42 A.L.R.3d 426.
Lobbying, validity and construction of state and municipal enactments regulating, 42 A.L.R.3d 1046.
Residential building: validity and construction of statute or ordinance providing for repair or destruction of residential building by public authorities at owner's expense, 43 A.L.R.3d 916.
Power of municipal corporation to limit exclusive use of designated lanes or streets to buses and taxicabs, 43 A.L.R.3d 1394.
Streets, estoppel of municipality as to encroachments upon public, 44 A.L.R.3d 257.
Lease or sublet property owned or leased by it, power of municipal corporation to, 47 A.L.R.3d 19.
Annexation, what land is contiguous or adjacent to municipalities so as to be subject to, 49 A.L.R.3d 589.
Standing of municipal corporation or other governmental body to attack zoning of land lying outside its borders, 49 A.L.R.3d 1126.
Intoxicating liquor, validity of municipal regulation more restrictive than state regulation as to time for selling or serving, 51 A.L.R.3d 1061.
Kosher food, validity and construction of regulations dealing with misrepresentation in the sale of, 52 A.L.R.3d 959.
Facilities: power of municipality to charge nonresidents higher fees than residents for use of municipal facilities, 57 A.L.R.3d 998.
Curfew: validity and construction of curfew statute, ordinance or proclamation, 59 A.L.R.3d 321, 83 A.L.R.4th 1056.
Nonpayment: right of municipality to refuse services provided by it to resident for failure of resident to pay for other unrelated services, 60 A.L.R.3d 714.
Automotive inspection: liability for negligence in carrying out governmentally required inspection of motor vehicle, 70 A.L.R.3d 1239.
Containers: validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers, 73 A.L.R.3d 1105.
Roof signs: validity and construction of ordinance prohibiting roof signs, 76 A.L.R.3d 1162.
Agents: doctrine of apparent authority as applied to agent of municipality, 77 A.L.R.3d 925.
Bathroom facilities: validity of statutes, ordinances and regulations requiring the installation or maintenance of various bathroom facilities in dwelling units, 79 A.L.R.3d 716.
Advertising: validity and construction of statute or ordinance restricting outdoor rate advertising by motels, motor courts, and the like, 80 A.L.R.3d 740.
Zoning or licensing regulation prohibiting or restricting location of billiard rooms and bowling alleys, 100 A.L.R.3d 252.
Right of one governmental subdivision to sue another such subdivision for damages, 11 A.L.R.5th 630.
Payment of attorneys' services in defending action brought against officials individually as within power or obligation of public body, 47 A.L.R. 5th 553.
62 C.J.S. Municipal Corporations §§ 104 to 133.
