Any office belonging to the class mentioned in Section 10-4-1 NMSA 1978 becomes vacant under any of the following circumstances:
A. by death of the party in office;
B. removal of the officer as provided by this chapter;
C. failure of the officer to qualify as provided by law;
D. expiration of the term of office when no successor has been chosen as provided by law;
E. when the officer removes from the county in which he is elected and in case of municipal officers, when he removes from the town or city for which he is elected;
F. absence from the county for six consecutive months, and in cases of municipal officers, absence for such length of time from the village, town or city for which he is elected; but this provision does not apply to those officers wherein the law provides that the duties may be discharged by a deputy, when such absence is due to illness or other unavoidable cause;
G. by resignation of the officer;
H. by an officer accepting and undertaking to discharge the duties of another incompatible office.
HISTORY:
Laws 1909, ch. 36, § 3; Code 1915, § 3956; C.S. 1929, § 96-107; 1941 Comp., § 10-301; 1953 5-3-1.
Notes to Decisions
Generally.
Former 1929 Code, § 96-107(8) (now this section) provided that an office becomes vacant by the incumbent accepting and undertaking to discharge the duties of another incompatible office, and because the office of mayor was not incompatible with the office of district attorney, a mayor who was subsequently elected to the office of district attorney did not unlawfully intrude into the office of mayor. State ex rel. Chapman v. Truder, 1930-NMSC-049, 35 N.M. 49, 289 P. 594, 1930 N.M. LEXIS 55 (N.M. 1930).
Office of mayor was not incompatible with the office of district attorney; thus, where a mayor was elected district attorney, the office of mayor did not become vacant pursuant to former 1929 Code, § 96-107(8), and the mayor did not unlawfully intrude into the office of mayor by virtue of his election to the office of district attorney. State ex rel. Chapman v. Truder, 1930-NMSC-049, 35 N.M. 49, 289 P. 594, 1930 N.M. LEXIS 55 (N.M. 1930).
Construction with other law.
Where an elected court clerk resigned before it was time for her to qualify for the office, and a new clerk was appointed in her place, there was no vacancy in the office on the day for the elected clerk’s qualification, and under former § 10-301, 1941 Comp. (now this section) and former § 10-302, 1941 Comp. (now 10-3-3 NMSA 1978) there was no authority for appointing a new clerk. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442, 1953 N.M. LEXIS 1025 (N.M. 1953).
Appointee incumbent cannot be displaced by another appointee; thus construed, former § 10-301, 1941 Comp. (now this section) and former § 10-302, 1941 Comp. (now 10-3-3 NMSA 1978) were not in conflict. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442, 1953 N.M. LEXIS 1025 (N.M. 1953).
Former § 10-301, 1941 Comp. (now this section), which created a vacancy for “failure of the officer to qualify as provided by law,” did not repeal by implication the last line of former § 10-302, 1941 Comp. (now 10-3-3 NMSA 1978) which provided that an appointive officer should hold office until “his successor shall be duly elected and qualified according to law.” State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442, 1953 N.M. LEXIS 1025 (N.M. 1953).
Former § 10-301, 1941 Comp. (now this section) could only be said to define vacancies in office. The words “elected” and “qualified” were to be read literally to mean “election” and “qualification.” State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442, 1953 N.M. LEXIS 1025 (N.M. 1953).
OPINIONS OF ATTORNEY GENERAL
Eligibility.
On its face, there does not appear to be anything inherently incompatible about holding the offices of city council member and appointed county official simultaneously, but, without knowing the specific county office an opinion cannot be given as to whether its statutory duties and responsibilities are incompatible with that of a city council member. Such factors as whether either office is in any way subordinate, antagonistic or inconsistent with the other would be key to determination. 1985 Attorney General Advisory Letter No. 85-24, 1985 N.M. AG LEXIS 33.