Whenever any vacancy in any county or precinct office in any of the counties of this state other than a vacancy in the office of county commissioner, shall occur by reason of death, resignation or otherwise it shall be the duty of the board of county commissioners of the county where such vacancy has occurred to fill said vacancy by appointment and said appointee shall be entitled to hold said office until his successor shall be duly elected and qualified according to law.
HISTORY:
Laws 1907, ch. 6, § 2; Code 1915, § 1219; C.S. 1929, § 33-4233; 1941 Comp., § 10-302; 1953 5-3-2.
Notes to Decisions
Authority of county commissioners.
Generally.
Where power has been given to appoint to an office and the same has been exercised, any subsequent appointment to the same office will be void unless the prior incumbent has been removed or the office has otherwise become vacant. State ex rel. Walker v. Dilley, 1974-NMSC-090, 86 N.M. 796, 528 P.2d 209, 1974 N.M. LEXIS 1464 (N.M. 1974).
Authority of county commissioners.
Board of county commissioners exceeded its power under former 5-3-2, 1953 Comp. when, after appointing an acting county clerk to replace the elected clerk who had resigned, the board then attempted to appoint a successor to the acting clerk, who under the statute was entitled to the office until the next election. State ex rel. Walker v. Dilley, 1974-NMSC-090, 86 N.M. 796, 528 P.2d 209, 1974 N.M. LEXIS 1464 (N.M. 1974).
Construction.
Words “or otherwise” in former § 10-302, 1941 Comp. (now this section) should not be construed ejusdem generis, but rather as extending the scope of the statute to include vacancies other than those created by death or resignation. 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).
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; under former § 10-301, 1941 Comp. (now 10-3-1 NMSA 1978) and former § 10-302, 1941 Comp. (now this section) 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 10-3-1 NMSA 1978) and former § 10-302, 1941 Comp. (now this section) 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).
Elections.
An incumbent appointee, who was appointed the successor for the county clerk following the clerk’s resignation, could not be replaced by another appointee but was entitled to retain the office until a successor was elected to the office. 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.
A person having served two consecutive terms as county treasurer may not hold over for a third term or be appointed to serve. 1979 N.M. Op. Att'y Gen. No. 79-19.