2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 3 - Quo Warranto
Section 44-3-1 - [Commencement of proceedings; complaint; writ permissive.]

Universal Citation: NM Stat § 44-3-1 (2019)

The remedies heretofore obtainable by writ of quo warranto and by proceedings by information in the nature of quo warranto shall be commenced by the filing of a complaint as in other civil actions, and it shall not be necessary to sue out such writs in form, but this section shall not prevent nor be construed to prohibit the use by the supreme court and the district courts of the state of writs and proceedings in the forms hitherto used in such cases by such courts.

History: Laws 1919, ch. 28, § 1; C.S. 1929, § 115-101; 1941 Comp., § 26-201; 1953 Comp., § 22-15-1.

ANNOTATIONS

Cross references. — For extraordinary writs in exercise of supreme court's original jurisdiction, see Rule 12-504 NMRA.

Quo warranto is an ancient common-law writ, the origins of which are obscured by time. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

Quo warranto statutes liberally construed to effectuate purpose. — Statutes such as those concerning quo warranto are remedial in character, and as such should be liberally interpreted to effectuate the objects intended. One of the primary purposes of quo warranto is to ascertain whether one is constitutionally authorized to hold the office he claims, whether by election or appointment, and the supreme court must liberally interpret the quo warranto statutes to effectuate that purpose. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

Writ of quo warranto is a writ of grace and not of right. De Vigil v. Stroup, 1910-NMSC-046, 15 N.M. 544, 110 P. 830 (decided under former law).

Statutory remedy for contest of elections superseded quo warranto. — Statutory remedy for contest of elections to public office has superseded quo warranto, but in other respects the remedy at common law and under the statute is in force. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41; State ex rel. Abercrombie v. District Court, 1933-NMSC-057, 37 N.M. 407, 24 P.2d 265.

Remedy of quo warranto may be invoked against municipal corporations, or quasi-municipal corporations, as well as private corporations, to oust them from the usurpation of a franchise or power not authorized by the charter or the laws under which they are organized. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.

Consolidated rural school district is not a municipal corporation. — A consolidated rural school district was not a de facto or quasi-municipal corporation so that it would fall within the doctrine that quo warranto is the sole remedy for attacking existence of a corporation. Thrall v. Grant County Bd. of Educ., 1934-NMSC-049, 38 N.M. 358, 33 P.2d 908.

Proceedings must be brought in name of state. — A private person may not bring proceedings by quo warranto to contest a state office; they must be brought in the name of the state. State ex rel. Hannett v. District Court, 1925-NMSC-004, 30 N.M. 300, 233 P. 1002.

Proceeding goes only to removing intruder from office. — A private person cannot have writ of quo warranto to adjudicate his title to an office. The proceeding in the nature of quo warranto goes only to removing the intruder. De Vigil v. Stroup, 1910-NMSC-046, 15 N.M. 544, 110 P. 830 (decided under former law).

Court cannot on its own initiative remove officer for misconduct. — Such a proceeding can only be brought by one having the requisite interest therein or the statutory right or authority. State ex rel. White v. Clevenger, 1961-NMSC-109, 69 N.M. 64, 364 P.2d 128.

Quo warranto proceeding against district judge purely personal. — A proceeding in quo warranto against a district judge is a proceeding to inquire into his right to hold office and has only incidental reference to any official action. The proceeding is purely personal. State ex rel. Holloman v. Leib, 1912-NMSC-031, 17 N.M. 270, 125 P. 601 (decided under former law).

Special tax attorney not public officer. — Writ may not be used to test the legal right of a member of the New Mexico house of representatives to be employed as special tax attorney, since such attorney is not a public officer. State ex rel. Gibson v. Fernandez, 1936-NMSC-027, 40 N.M. 288, 58 P.2d 1197.

Right of one claiming election as acequia commissioner to proceed under this act is not affected by Laws 1921, ch. 129 (73-2-14, 73-3-3 NMSA 1978). State ex rel. Besse v. District Court, 1925-NMSC-025, 31 N.M. 82, 239 P. 452.

Jurisdiction of quo warranto proceedings is in the district court, although it does not determine the character of the proceeding. Territory ex rel. Wade v. Ashenfelter, 1887-NMSC-013, 4 N.M. (Gild.) 93, 12 P. 879, appeal dismissed, 154 U.S. 493, 14 S. Ct. 1141, 38 L. Ed. 1079 (1893) (decided under former law).

Legislation which affects constitutionally vested judicial power not binding. — Since the constitution provides for separate and equal branches of government in New Mexico, any legislative measure which affects pleading, practice or procedure in relation to a power expressly vested by the constitution in the judiciary, such as quo warranto, cannot be deemed binding. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Quo Warranto §§ 86 to 88.

Right of corporation to act as relator in information in the nature of quo warranto, 1 A.L.R. 197.

Quo warranto as proper remedy to enforce forfeiture of street railway franchise, 34 A.L.R. 1425.

Quo warranto as a remedy for violation of criminal or penal statute by corporation, 53 A.L.R. 1038.

Quo warranto to protect corporation against use of name by another corporation, 66 A.L.R. 1026, 72 A.L.R.3d 8.

Practice of law by corporation as ground for quo warranto, 73 A.L.R. 1336, 105 A.L.R. 1376, 157 A.L.R. 310.

Quo warranto to test result of primary election, 86 A.L.R. 246.

Quo warranto to test right to serve as grand or petit juror, 91 A.L.R. 1009.

Holding or parent corporation as a necessary or proper party to a quo warranto proceeding against subsidiary corporation, 106 A.L.R. 1188.

Quo warranto as remedy in field of taxation, 109 A.L.R. 324.

Quo warranto to oust incumbent of public office, based on misconduct or other ground of forfeiture, 119 A.L.R. 725.

Power of district, county or prosecuting attorney to bring action of quo warranto, 153 A.L.R. 899.

Corporation as necessary or proper party defendant in proceedings to determine validity of election or appointment of corporate director or officer, 21 A.L.R.2d 1048.

Statute of limitations or laches as applied to quo warranto proceedings, 26 A.L.R.2d 828.

Right to maintain quo warranto proceedings to test title to or existence of public office by private person not claiming office, 51 A.L.R.2d 1306.

74 C.J.S. Quo Warranto § 34.

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