Any county, precinct, district, city, town or village officer elected by the people, and any officer appointed to fill out the unexpired term of any such officer, may be removed from office on any of the grounds mentioned in this chapter and according to the provision hereof.
HISTORY:
Laws 1909, ch. 36, § 1; Code 1915, § 3954; C.S. 1929, § 96-105; 1941 Comp., § 10-303; 1953 5-3-3.
Notes to Decisions
Authority of district attorney.
Authority of district attorney.
District attorney had the authority under former 1929 Code, § 96-105 (now this section) to seek the removal of school district board members through district court proceedings; the removal authority was not exclusively vested with the state board of education [public education department] under N.M. Const. art XII § 6. State ex rel. Hannah v. Armijo, 1933-NMSC-063, 37 N.M. 423, 24 P.2d 274, 1933 N.M. LEXIS 59 (N.M. 1933).
Definitions.
Where a county commissioner committed acts of misconduct, for which the State sought his removal, the terms “office” and “in office,” as used in this section and 10-4-2 NMSA 1978, meant during the current term for which the officer was elected or appointed so that misconduct committed during his previous term of office could not be considered; a public officer could not be removed for acts occurring in other terms of office than his current term. State v. Santillanes, 1982-NMSC-138, 99 N.M. 89, 654 P.2d 542, 1982 N.M. LEXIS 2980 (N.M. 1982).
Previous misconduct.
Where a county commissioner was indicted for corruption, gross immorality, gross incompetency, and gross negligence in the discharge of his duties, and the State sought his removal pursuant to this section, evidence of misconduct committed during his previous term of office properly was excluded. State v. Santillanes, 1982-NMSC-138, 99 N.M. 89, 654 P.2d 542, 1982 N.M. LEXIS 2980 (N.M. 1982).
Remedies.
By enacting 1909 N.M. Laws ch. 36, the Legislature conferred authority upon district courts to suspend a public official pending the investigation of an accusation looking to his removal from office, pursuant to this section; therefore, the New Mexico Supreme Court had the authority to issue a writ of prohibition to a district court restraining a judge from conducting a preliminary investigation as to whether a clerk should be suspended because the purpose of N.M. Const. art XX § 2, was to provide for the expiration of the term of office of public officials and to extend such term if necessary, not to limit the Legislature’s power to provide for suspension of public officers. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376, 1914 N.M. LEXIS 51 (N.M. 1914).
Removal.
New Mexico law affords at least two statutory alternatives for removal of an elected official from office. 10-4-1 to 10-4-29 NMSA 1978, 44-3-1 to 44-3-16 NMSA 1978. Lopez v. Kase, 1999-NMSC-011, 126 N.M. 733, 975 P.2d 346, 1999 N.M. LEXIS 54 (N.M. 1999).
Relator district attorney’s writ of prohibition to stay a proceeding by respondent state seeking to remove him from office pursuant to the removal provisions of former § 10-303, 1941 Comp. (now this section) was granted because the district attorney was an officer appointed by the governor of New Mexico with and by consent of the legislature, and the 1909 statute was not intended to embrace the office of district attorney within its purview. Thus, the district attorney was not amenable to removal provisions of the statute. State ex rel. Prince v. Rogers, 1953-NMSC-101, 57 N.M. 686, 262 P.2d 779, 1953 N.M. LEXIS 1039 (N.M. 1953).
Attorney who filed successive affidavits disqualifying a district court judge and another judge was denied a writ of prohibition with respect to the second judge because, under the authority of former Laws 1933, ch. 184, §§ 1-2, a disqualifying affidavit applied only to the presiding judge of the district where the cause was pending. State ex rel. Tittman v. McGhee, 1937-NMSC-006, 41 N.M. 103, 64 P.2d 825, 1937 N.M. LEXIS 5 (N.M. 1937).
Research References and Practice Aids
Cross references.
Circumstances causing vacancy in local office, 10-3-1 NMSA 1978.
Grand jury accusation, 10-4-3 NMSA 1978.
Exclusive method of removal, 10-4-29 NMSA 1978.