2020 New Mexico Statutes
Chapter 4 - Counties
Article 37 - County Ordinances
Section 4-37-1 - Counties; powers; ordinances.

All counties are granted the same powers that are granted municipalities except for those powers that are inconsistent with statutory or constitutional limitations placed on counties. Included in this grant of powers to the counties are those powers necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of any county or its inhabitants. The board of county commissioners may make and publish any ordinance to discharge these powers not inconsistent with statutory or constitutional limitations placed on counties.

History: 1953 Comp., § 15-36A-1, enacted by Laws 1975, ch. 312, § 1.

Cross references. — For municipal ordinances, see 3-17-1 NMSA 1978 et seq.

For powers of municipalities, see 3-18-1 NMSA 1978 et seq.

For zoning regulations, see 3-21-1 NMSA 1978 et seq.

Powers. — A county is a political subdivision of the state and possesses only such powers as are expressly granted to it by the legislature, together with those necessarily implied to implement those express powers. El Dorado at Santa Fe, Inc. v. Board of Cnty. Comm'rs of Santa Fe Cnty., 1976-NMSC-029, 89 N.M. 313, 551 P.2d 1360.

Construction of grants of authority generally. — It is not necessary that grant of powers to counties or other municipal corporations contain a specification of each particular act to be done, but it is sufficient if the words used are sufficiently comprehensive to include the proposed acts; an express authority might be general as well as particular. Agua Pura Co. v. Mayor of Las Vegas, 1900-NMSC-002, 10 N.M. 6, 60 P. 208.

Police powers. — The legislature has conferred police powers to counties through Section 4-37-1 NMSA 1978. Brazos Land, Inc. v. Board of Cnty. Comm'rs, 1993-NMCA-013, 115 N.M. 168, 848 P.2d 1095.

General police power and zoning ordinances. — Counties have statutory authority to enact general police power and zoning ordinances; however, enactment procedures and regulatory powers differ between the two. Board of Cnty. Comm'rs v. City of Las Vegas, 1980-NMSC-137, 95 N.M. 387, 622 P.2d 695.

Preemption of local ordinances. — Under New Mexico law, there are three ways a state statute can preempt a local ordinance: 1) expressly, because the statute contains language stating that it preempts local ordinances, 2) impliedly, because the ordinance and the state statute conflict, or 3) impliedly, because the statute demonstrates an intent to occupy the entire field. Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195 (10th Cir. 2002), cert. denied, 538 U.S. 906, 123 S. Ct. 1483, 155 L. Ed. 2d 225 (2003).

In passing the Forest Conservation Act, 68-2-1 NMSA 1978 et seq., the legislature left room for concurrent jurisdiction over local forestry issues; thus, the act does not impliedly preempt a county ordinance, dealing, inter alia, with economic development, local employment, and hours of operation, by occupying the entire field of regulation relating to timber harvesting in New Mexico. Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195 (10th Cir. 2002), cert. denied, 538 U.S. 906, 123 S. Ct. 1483, 155 L. Ed. 2d 225 (2003).

Under New Mexico law, an ordinance is not necessarily invalid because it provides for greater restrictions than state law; rather, the test is whether the ordinance permits an act the general law prohibits or prohibits an act the general law permits. Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195 (10th Cir. 2002), cert. denied, 538 U.S. 906, 123 S. Ct. 1483, 155 L. Ed. 2d 225 (2003).

Enforcement of zoning ordinances. — Although this section acknowledges that counties are granted the same powers granted to municipalities except for those powers that are inconsistent with the statutory or constitutional limitations placed on counties, the statute in no way provides an express grant of authority to enforce local zoning ordinances on state land. County of Santa Fe v. Milagro Wireless, LLC, 2001-NMCA-070, 130 N.M. 771, 32 P.3d 214.

Leasing road equipment. — A county has the power to lease road equipment as a power included in the right to purchase. Allstate Leasing Corp. v. Board of County Comm'rs, 450 F.2d 26 (10th Cir. 1971).

Road construction and repair. — Counties possess the authority to construct or repair county roads within their boundaries. Bolton v. Board of Cnty. Comm'rs, 1994-NMCA-167, 119 N.M. 355, 890 P.2d 808, cert. denied, 119 N.M. 311, 889 P.2d 1233 (1995).

Removal of offices, property and prisoners to new county seat. — A county is a quasi-municipal corporation and among its definite powers is the power, coupled with a mandatory duty, to remove to new county seat, when properly selected, all county offices and property, and all county prisoners, if courthouse and jail are completed. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.

Power to adopt traffic ordinances. — Based on express provisions in the state Motor Vehicle Code [66-1-1 NMSA 1978] governing local authorities and the corresponding powers of counties and municipalities, a county has the statutory authority to adopt local traffic ordinances that are not inconsistent with the laws of the state. Board of Comm'rs v. Greacen, 2000-NMSC-016, 129 N.M. 177, 3 P.3d 672.

Ordinance conflicted with free range of livestock management. — Where the county filed a criminal complaint against defendant for allowing defendant's cattle to run at large in violation of a county ordinance that made it unlawful for a person to allow or permit an animal to run at large; and the land in question was not within the boundary of a municipality, a conservancy district, or a military base, the metropolitan court properly dismissed the criminal complaint because the ordinance conflicted with New Mexico's free range or "fence out" approach to livestock management as expressed in Subsection C of Section 66-7-363 NMSA 1978 and Section 77-16-1 NMSA 1978, and the county did not have general authority to disallow the free running of livestock in unincorporated or open areas of their jurisdiction. Bernalillo Bd. of Co. Comm'rs v. Benavidez, 2013-NMCA-015, 292 P.3d 482, cert. denied, 2012-NMCERT-012.

Merit system and collective bargaining. — A board of county commissioners has power to adopt a merit system for, and collectively bargain with, county employees. Board of Cnty. Comm'rs v. Padilla, 1990-NMCA-125, 111 N.M. 278, 804 P.2d 1097.

Authority to charge franchise fee. — A county board of commissioners may enter into franchise agreements with utility companies and impose a franchise fee in exchange for the county's reasonable expenses incurred in granting the franchise and for the utilities' use of public highways, streets and alleys under the franchise agreements. 2014 Op. Att'y Gen. No. 14-01.

Powers generally. — A county is merely a governmental unit of the state and possesses only such powers as are expressly or impliedly conferred upon it by constitutional provisions or legislative enactments. 1969 Op. Att'y Gen. No. 69-103.

Consolidation of counties. — Two or more counties possess the authority to consolidate in accordance with 3-5-1 NMSA 1978. The counties, however, must be contiguous. 1987 Op. Att'y Gen. No. 87-55.

The legislature would be prohibited from passing a special law that would in effect or specifically abolish a county. When two or more counties consolidate under a general statute, however, they effectively are abolished, and a new entity would emerge. 1987 Op. Att'y Gen. No. 87-55.

The laws providing for annexation or consolidation of portions of counties provide no "priorities" among contiguous counties. The petition must accurately set out the boundaries of the county proposed to be annexed and must state to which county the residents desire to be annexed. The resolutions providing for consolidation must also include within their terms the counties to be consolidated. 1987 Op. Att'y Gen. No. 87-55.

No authority to call for referendum. — In the absence of a constitutional reservation of the right of the people to hold referendum on county ordinances, and in the absence of a specific statutory authority requiring a referendum on ordinances, there is no authority for a county to call a voluntary referendum. Should such a referendum be held, it would not, regardless of its outcome, affect the adoption or validity of the ordinance. 1979 Op. Att'y Gen. No. 79-35.

Cooperation with cities and federal government. — A county and a city can enter into an agreement to cooperate in sponsoring a flood control project, and counties and cities can cooperate with the federal government and seek aid under the Watershed Protection and Flood Prevention Act (16 U.S.C. § 1001 et seq.). 1963 Op. Att'y Gen. No. 63-82.

Power to carry out proprietary functions. — Under the general rule, the grant to counties of the authority to carry out normally proprietary functions may not be implied under any statute. 1969 Op. Att'y Gen. No. 69-103.

Operation of housing project. — The county commissioners are invested with broad powers regarding authority to do acts in the interest of the county. The operation of a housing project is certainly in the interest of the county and for a county purpose and county commissioners have the power to maintain and operate a housing project. 1953 Op. Att'y Gen. No. 53-5725.

Authority over sewage facilities. — Pursuant to this section and 3-26-1A(1) NMSA 1978, counties have the authority to acquire and maintain sewage facilities and thereby meet the requirements of 40 C.F.R. 131.11(o)(2)(ii), which requires an agency to have the authority to effectively manage waste treatment works, etc. 1978 Op. Att'y Gen. No. 78-15.

County may not impose criminal sanctions by resolution rather than by ordinance. 1981 Op. Att'y Gen. No. 81-26.

Fireworks. — This section gives counties the same authority to enact ordinances under the Fireworks Licensing and Safety Act (60-2C-1 et seq. NMSA 1978) as is specifically conferred on municipalities. 1990 Op. Att'y Gen. No. 90-11.

Setting office hours. — A county commission may set the hours that offices of other elected county officials must stay open. 1990 Op. Att'y Gen. No. 90-05.

Increasing work hours without additional compensation. — A county commission may increase the hours worked by county employees without additional compensation. 1990 Op. Att'y Gen. No. 90-05.

Violation of law by county officials. — Elected county officials who fail to perform their official duty are subject to removal, civil suit or criminal prosecution if they violate the law. 1987 Op. Att'y Gen. No. 87-18.

General superintending authority of commission or council. — A county commission or a county council does not have any general superintending authority over other elected county officials. 1987 Op. Att'y Gen. No. 87-18.

Supervision of employees of elected officials. — A county commission, its personnel director or other agents may exercise supervision over the employees of other elected officials and require those employees to work hours contrary to those established by the officials, to the extent permitted by statute, provided the board's supervision over elected officials' employees does not interfere with the duties of those officials. 1990 Op. Att'y Gen. No. 90-05.

Although a county commission has the authority to control staff of elected officials to some extent through the budget, it must act reasonably in light of other demands on the budget and the needs of the officials. 1990 Op. Att'y Gen. No. 90-05.

Lease of equipment or personal property. — Municipalities or counties may lease equipment or other personal property on a long-term basis, since municipalities and counties in New Mexico have been given express authority to contract, and a lease is merely a contract. 1966 Op. Att'y Gen. No. 66-20.

Purchase and sale of land for industrial park development. — Under this section, it appears that a county may purchase land for industrial park development and in turn sell the property in order for the development to be realized if such a transaction would be for the benefit of the inhabitants of the county. It appears that so long as the land purchased for industrial park development is sold at a fair market price, the operation of such a project will not run afoul of N.M. Const., art. IX, § 14. 1965 Op. Att'y Gen. No. 65-75.

Conservation easements. — Counties may acquire and hold conservation easements assuming they do so consistent with other laws applicable to public purchases of real property and do not do so by eminent domain. 2001 Op. Att'y Gen. No. 01-02.

Providing work for charitable institutions. — It may be implied, from construction of N.M. Const., art. IX, § 14, that a county would have the power to do road work for a charitable institution which was providing for the care of sick and indigent persons. 1969 Op. Att'y Gen. No. 69-103.

Providing services for private persons. — The county road departments may not perform services for private persons without specific statutory authority. 1969 Op. Att'y Gen. No. 69-103.

Responsibility for legal fees. — In a lawsuit between a county commission and other elected county officials concerning employment terms and conditions, each party is responsible for its own attorney's fees. The county is responsible for legal fees of its elected officials and employees only to the extent required by statute. 1990 Op. Att'y Gen. No. 90-05.

Law reviews. — 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 §§ 167 to 204, 295 to 383, 400.

Loan or transfer temporarily of money from one fund to another, power to make, 70 A.L.R. 431.

Mortgage or pledge of property or income thereof, power as to, 71 A.L.R. 828.

Federal courts, applicability to, of state constitutional or statutory provisions regarding liability of county to suit, 86 A.L.R. 1019.

Insurance of public property, right or duty to carry, 100 A.L.R. 600.

Compromise claim, power of county or its officials to, 105 A.L.R. 170, 15 A.L.R.2d 1359.

"County and corporate" purposes, what are, within constitutional provision that legislature may invest power to levy taxes for, in the local authorities, 106 A.L.R. 913.

Stock of private corporation, constitutional or statutory provisions prohibiting counties from acquiring or subscribing to, 152 A.L.R. 495.

Auditorium or stadium as public purpose for which taxing power may be exercised, 173 A.L.R. 415.

Assignment of claims arising out of contract against state, constitutionality, construction and effect of statute forbidding, 175 A.L.R. 1119.

Real estate, power of governing body to dispose of in absence of specific statutory authority, 21 A.L.R.2d 722.

Tax claim, power to remit, release or compromise, 28 A.L.R.2d 1425.

Public utility plant or interest therein, power of county to sell, lease or mortgage, 61 A.L.R.2d 595.

20 C.J.S. Counties §§ 39, 73.