2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 3 - Quo Warranto
Section 44-3-4 - [Who may bring action; private relators; when action lies.]

An action may be brought by the attorney general or district attorney in the name of the state, upon his information or upon the complaint of any private person, against the parties offending in the following cases:

A. when any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office or offices in a corporation created by authority of this state; or,

B. when any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall work a forfeiture of his office; or,

C. when any association or number of persons shall act, within this state, as a corporation without being duly incorporated, or in case of a foreign corporation, without being duly authorized, to do business within this state.

The district attorneys in their respective judicial districts shall exercise the same power and right given by this section to the attorney general in cases which may be limited in their operation to the said district.

When the attorney general or district attorney refuses to act, or when the office usurped pertains to a county, incorporated village, town or city, or school district, such action may be brought in the name of the state by a private person on his own complaint.

History: Laws 1919, ch. 28, § 4; C.S. 1929, § 115-104; 1941 Comp., § 26-204; 1953 Comp., § 22-15-4.

Cross references. — For other annotations applicable to this section, see 44-3-1 NMSA 1978.

For existing election contest provisions being unaffected by quo warranto provisions, see 44-3-15 NMSA 1978 and notes thereto.

For quo warranto proceedings against a corporation for violation of act regulating financing of automobiles, see 57-11-7 NMSA 1978.

I. GENERAL CONSIDERATION.

Impeachment does not preempt quo warranto. — Impeachment by the legislature does not preempt quo warranto as the exclusive means for removing a felon from public office. State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33.

Action lies to contest constitutionality of judge's appointment. — Where respondent was elected to the New Mexico senate at the general election held November 3, 1970 for a four-year term, during which the salaries of district judges were increased by $7000 per annum, and was again a successful candidate for election to the New Mexico senate at the general election held November 5, 1974, but was appointed by the governor to the district bench before he qualified and prior to the commencement of the 1975 legislative session, it was held in a quo warranto proceeding that respondent's appointment to the office of district judge was in violation of N.M. Const., art. IV, § 28 and was accordingly invalid. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

Proceedings not place to question statute's constitutionality where respondent accepted benefits. — Respondent senator, who at no time questioned the constitutionality of the 1972 Senate Reapportionment Act (former Sections 2-8-1 to 2-8-53 NMSA 1978) or the district court decree which held he did not have to run again in 1972, and enjoyed the benefit of the law which allowed him to retain his position without contest in 1972, would not be heard to question its propriety in quo warranto proceedings, challenging his right to be a district judge; a de facto officer is estopped from taking advantage of his own want of title. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

II. WHO BRINGS ACTION.

State, through attorney general, is indispensable party plaintiff in quo warranto proceeding to challenge the propriety of an election contest, since a private person cannot have the writ to adjudicate his title to an office, and, indeed, the proceeding in the nature of a quo warranto goes only to removing the intruder, and no further. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

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

Lack of jurisdiction where indispensable party not joined in action. — In an action in quo warranto challenging the validity of special zoning districts, where the county commissioners are an indispensable party and are not joined, the trial court lacks jurisdiction to adjudicate the merits of plaintiffs' quo warranto action. State ex rel. Huning v. Los Chavez Zoning Comm'n, 1979-NMSC-088, 93 N.M. 655, 604 P.2d 121.

Court without jurisdiction unless attorney general can sue. — Unless the attorney general has the right and capacity to maintain the action, the court is without jurisdiction. State ex rel. White v. Clevenger, 1961-NMSC-109, 69 N.M. 64, 364 P.2d 128.

District attorney may test corporation's statewide authority. — The district attorney would have authority to bring a quo warranto action to test statewide authority of a corporation. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399.

III. PRIVATE RELATORS.

Private party may act when statutory requirements met. — Unless statutory requirements are met, there is no authority in a private person to make application. State ex rel. Hannett v. District Court, 1925-NMSC-004, 30 N.M. 300, 233 P. 1002.

Private party may act when district attorney refuses. — This section authorizes a private person to institute action in the name of the state, claiming election to office of acequia commissioner, the district attorney having refused to act. State ex rel. Besse v. Dist. Court, 1925-NMSC-025, 31 N.M. 82, 239 P. 452.

IV. WHEN ACTION LIES.

Felony conviction occurring during the term of an elective office. — Quo warranto is an appropriate procedure for removing an elected official when the elected official is convicted of a felony during the elected official's term of office. State ex rel. King v. Sloan, 2011-NMSC-020, 149 N.M. 620, 253 P.3d 33.

Action proper when officer said to forfeit office. — Where the acts of an officer are said to work a forfeiture of the office, ipso facto, quo warranto is a proper remedy. State ex rel. Martinez v. Padilla, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.

Action proper where misuse of money. — Where public officers are disqualified for misuse of public funds, the court has jurisdiction to remove them by a writ of quo warranto. State ex rel. Martinez v. Padilla, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.

When requirement for quo warranto not met. — Where there has been no showing that the attorney general of this state has refused to act on behalf of the private litigant plaintiffs, the statutory requirement for quo warranto has not been met, and there is no authority in the plaintiffs to file an application in quo warranto. State ex rel. Huning v. Los Chavez Zoning Comm'n, 1979-NMSC-088, 93 N.M. 655, 604 P.2d 121.

Office of commissioner of special zoning district commission is "public office" for which an action lies in quo warranto. State ex rel. Huning v. Los Chavez Zoning Comm'n, 1979-NMSC-088, 93 N.M. 655, 604 P.2d 121.

Quo warranto to ascertain whether public officer constitutionally and legally authorized to perform any act in or exercise any functions of the office to which he lays claim. State ex rel. Anaya v. McBride, 1975-NMSC-032, 88 N.M. 244, 539 P.2d 1006.

Quo warranto to ascertain whether one is constitutionally authorized to hold judicial office. — 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. Clark v. Mitchell, 2016-NMSC-005.

Where a tenth judicial district court judge failed to garner at least fifty-seven percent of the votes cast on the question of his retention as required by N.M. Const., Art. VI, § 33 of the New Mexico constitution, where the judge applied for the resulting judicial vacancy, and where the judicial nominating committee submitted for consideration the judge's name to the governor, who then appointed the judge to the vacant judicial position, petition for writ of quo warranto was denied because the New Mexico constitution does not prohibit a judicial nominating commission from considering, and the governor from appointing, an otherwise qualified judicial applicant to fill a vacant judicial office based on the judicial applicant's nonretention in the immediately preceding election. Clark v. Mitchell, 2016-NMSC-005.

Problems involving legal title to office are germane only in a proceeding by quo warranto. Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170 (decided under former law).

Misconduct of officer does not of itself amount to forfeiture of the office. An officer rightfully in office can only be removed for misconduct in a proper proceeding. State ex rel. White v. Clevenger, 1961-NMSC-109, 69 N.M. 64, 364 P.2d 128.

Quo warranto is not cumulative remedy or one in addition to any special statutory remedy for contesting elections contained in the Election Code. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.

Statutory remedy for contesting elections to public office is exclusive, and has superseded quo warranto. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41 (decided under former election laws).

If other election provision applies, quo warranto not available. — Quo warranto is no longer available to an unsuccessful candidate if the contest procedure established by the Election Code applies to the public office in question. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005 (decided under former Election Code).

Writ lies if no other statutory provision exists. — Quo warranto was a proper action to bring since there was no provision in the Election Code or other related statutes providing for contests for municipal school board elections. State v. Rodriguez, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005 (decided under former Election Code).

Writ used to test right to land grant trusteeship. — The writ may be used to test the right to the office of trustee of the Tecolote land grant. State ex rel. Valdez v. Moise, 1938-NMSC-015, 42 N.M. 280, 76 P.2d 1155.

Writ not used when questioned office not public. — The position of special tax attorney is not a public office, and quo warranto is not the proper proceeding to test the right of an individual to hold that position at the same time he is a member of the state legislature. State ex rel. Gibson v. Fernandez, 1936-NMSC-027, 40 N.M. 288, 58 P.2d 1197.

Language refers to officer's right to act not actions. — The term employed in the statute, "unlawfully hold or exercise . . . any office . . . in a corporation," refers to the right of one to act as an officer and not to the acts of the officer in the discharge of his duties, where such acts do not ipso facto operate as, or amount to, a forfeiture of the office. State ex rel. White v. Clevenger, 1961-NMSC-109, 69 N.M. 64, 364 P.2d 128.

Writ not proper remedy unless acts amount to forfeiture. — Quo warranto is not a proper remedy to test the legality of the acts of an officer or his misconduct in office, nor to compel, restrain or obtain a review of such acts unless they amount to a forfeiture of the office, where neither the title to the office nor the right to a franchise is involved. State ex rel. White v. Clevenger, 1961-NMSC-109, 69 N.M. 64, 364 P.2d 128.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).

For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 65 Am. Jur. 2d Quo Warranto §§ 12 to 48, 60 to 64.

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

Teacher as an officer whose right may be tested by quo warranto, 30 A.L.R. 1423.

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

Condemnation by de facto corporation, right of landowner to question by quo warranto legality of corporate existence, 44 A.L.R. 555.

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.

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

Power of district, county or prosecuting attorney to bring action of quo warranto, 131 A.L.R. 1207, 153 A.L.R. 899.

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.

Remedy for determining right or title to office in unincorporated private association, 82 A.L.R.2d 1172.

74 C.J.S. Quo Warranto §§ 6 to 14, 25 to 31.

If attorney general refuses to act then citizen can. — Under this section, quo warranto proceedings cannot be instituted for the removal of a public officer by a private citizen unless the attorney general refuses to bring such action. 1940 Op. Att'y Gen. 40-3410.