N.M. Const. art. IV, § 10
Each member of the legislature shall receive:
The 1996 amendment, which was proposed by H.J.R. No. 3 (Laws 1996) and adopted at the general election held November 5, 1996, by a vote of 309,927 for and 155,265 against, substituted the internal revenue service per diem and standard mileage rate for the $75 per diem and the $.25 mileage rate in Subsection A.
The 1982 amendment, which was proposed by H.J.R. No. 1 (Laws 1982) and adopted at the general election held on November 2, 1982, by a vote of 148,486 for and 112,763 against, substituted "seventy-five dollars ($75.00)" for "forty dollars," "twenty-five cents ($.25)" for "ten cents" and "Article 4, Section 5" for "Section 5, Article IV" in Subsection A and inserted "of this section" following "Subsection A" in Subsection B.
The 1971 amendment, which was proposed by H.J.R. No. 2 (Laws 1971) and adopted at the special election held on November 2, 1971, with a vote of 41,583 for and 32,992 against, amended this section by breaking the existing language into an introductory phrase and two subsections, A and C, substituting "forty" for "twenty" in Subsection A and adding "as provided by law" near the middle of that subsection, deleting "and he shall receive" preceding "no other compensation" in Subsection C and adding Subsection B.
The 1953 amendment, which was proposed by S.J.R. No. 10 (Laws 1953) and adopted at a special election held on September 15, 1953, with a vote of 13,822 for and 13,567 against, amended this section by substituting "per diem expense the sum of not more than twenty" for "compensation for his services the sum of ten" and deleting "term of the" preceding "session as defined" and the parenthetical expressions "($10.00)" and "(10¢)."
The 1944 amendment, which was proposed by H.J.R. No. 2 (Laws 1943) and adopted at the general election held on November 7, 1944, with a vote of 26,547 for and 23,041 against, amended this section, by increasing from $5.00 to $10.00 per day the compensation of the legislators and substituting "once each term of the session as defined by Section 5, Article IV of this constitution" for "once each session," so that as amended the section read: "Each member of the legislature shall receive as compensation for his services the sum of ten dollars ($10.00) for each days' attendance during each session, and ten cents (10) for each mile traveled in going to and returning from the seat of the government by the usual traveled route, once each term of the session as defined by Section 5, Article IV of this constitution, and he shall receive no other compensation, perquisite or allowance."
Compiler's notes. — An amendment to this section proposed by S.J.R. No. 14 (Laws 1961), which would have provided for compensation of members of the legislature, was submitted to the people at the special election held on September 19, 1961. It was defeated by a vote of 16,411 for and 32,801 against.
An amendment to this section proposed by S.J.R. No. 14 (Laws 1965), which would have provided for increase in compensation of members of the legislature, was submitted to the people at the special election held on September 28, 1965. It was defeated by a vote of 13,087 for and 39,922 against.
An amendment to this section was proposed by House Memorial 32 (Laws 1969), which requested the constitutional convention to provide salaries for legislators of $3,600 per year, per diem and mileage of $20.00 per day and $.10 for each mile traveled in going to and returning from the seat of government by the usual, traveled route once each session. The proposed constitution was submitted to the people at the special election held on December 9, 1969, and defeated by a vote of 59,695 for and 63,331 against.
An amendment to this section proposed by S.J.R. No. 2 (Laws 1974), which would have repealed this section and enacted a new one providing for the appointment of a legislative compensation commission, was submitted to the people at the general election held on November 5, 1974. It was defeated by a vote of 47,104 for and 75,618 against.
An amendment to this section proposed by S.J.R. No. 14 (Laws 1978), which would have provided for a monthly salary of $300 to begin on January 1, 1979, and would have excepted "legislative retirement as established by law" from the present Subsection C, was submitted to the people at the general election on November 7, 1978. It was defeated by a vote of 90,068 for and 103,213 against.
An amendment to this section, proposed by S.J.R. Nos. 3, 6 and 12 (Laws 1980), which would have substituted "sixty dollars ($60.00)" for "forty dollars ($40.00)" and "twenty cents ($.20)" for "ten cents ($.10)" in Subsection A, was submitted to the people at the general election held on November 4, 1980. It was defeated by a vote of 105,693 for and 138,339 against.
An amendment to this section, proposed by H.J.R. No. 12 (Laws 1988), which would have added a Subsection C providing "annuity benefits in an amount not to exceed six thousand dollars ($6,000) annually under a retirement program as provided by law, provided that this subsection applies to any law providing for legislative retirement enacted after 1962; and" and would have redesignated present Subsection C as Subsection D, was submitted to the people at the general election held on November 8, 1988. It was defeated by a vote of 162,657 for and 207,133 against.
An amendment to this section proposed by S.J.R. No. 15 (Laws 1990), which would have increased legislators' per diem expenses to $100 per day and would have added a Subsection C providing "a salary of not more than five hundred dollars ($500) a month; and" was submitted to the people at the general election held on November 6, 1990. It was defeated by a vote of 78,643 for and 234,497 against.
An amendment to this section proposed by H.J.R. No. 10 (Laws 1992), which would have created a "citizens legislative compensation commission" to determine the salaries and expense allowances of the members of the legislature, was submitted to the people at the general election held on November 3, 1992. It was defeated by a vote of 215,628 for and 245,159 against.
An amendment to this section proposed by H.J.R. 10 (Laws 1994), which would have rewritten Subsection A to provide a legislative per diem and mileage and other expenses as provided by the Internal Revenue Code, was submitted to the people at the general election held on November 8, 1994. It was defeated by a vote of 181,842 for and 212,885 against.
Comparable provisions. — Idaho Const., art. III, § 23.
Montana Const., art. V, § 5.
Utah Const., art. VI, § 9.
Wyoming Const., art. III, § 6.
Legislative retirement plan constitutional. — The retirement benefits for which legislators may be eligible under the legislative retirement plan do not constitute legislative compensation; accordingly, the plan does not violate the constitution. State ex rel. Udall v. Public Employees Retirement Bd., 1995-NMSC-078, 120 N.M. 786, 907 P.2d 190, rev’g 1994-NMCA-094, 118 N.M. 507, 882 P.2d 548.
Paid leave for a teacher also serving as a legislator is not prohibited. — N.M. Const., Art. IV, § 10 permits members of the legislature to receive specified per diem and mileage during legislative sessions and for service on interim legislative committees, and "no other compensation, perquisite or allowance". The restrictions in this section apply to compensation for a legislator's services as a member of the legislature; the provision does not restrict a legislator's compensation for otherwise permissible, non-legislative employment, and therefore, this section does not apply to compensation, including paid leave, a legislator receives from a local school district for services as a teacher or administrator, because it is not compensation for the legislator's services as a member of the legislature. Provision of Paid Leave to Teacher Serving as Legislator (5/31/17), Att'y Gen. Adv. Ltr. 2017-05.
No retirement benefits. — New Mexico legislators may not receive legislative retirement benefits: Legislators may receive only per diem and mileage under this section. 1987 Op. Att'y Gen. No. 87-62 (but see State v. Public Employees Retirement Bd., 1995-NMSC-078, 120 N.M. 786, 907 P.2d 190), rev'g 1994-NMCA-094,118 N.M. 507, 882 P.2d 548.
Intent of section. — The intent of this section was to place a limit on the per diem and travel expense legislators could receive for attending legislative sessions. 1971 Op. Att'y Gen. No. 71-11.
Requirement of per diem clause. — The per diem clause of Subsection A requires legislation to give effect to the maximum rate permitted, while the mileage clause is complete in itself. Nonetheless, in 2-1-8 NMSA 1978, the legislature has provided for payment of both rates while it is in session. 1979 Op. Att'y Gen. No. 79-40.
Distinction exists between legislative or governmental and personal expenses; expenses incurred in the performance of official duties are allowable, while purely personal expenses are considered perquisites of office forbidden by constitutional provision. 1971 Op. Att'y Gen. No. 71-18.
Per diem and travel between sessions. — This section does not prohibit the reimbursement of per diem and travel expenses to legislators when that expense is incurred under appropriate authorizing statutes and at a time when the legislature is not in session; and the legislature may enact a law reimbursing expenses incurred by legislators while performing legislative duties between legislative sessions. 1971 Op. Att'y Gen. No. 71-11 (opinion rendered prior to 1971 amendment to this section).
No reimbursement for actual expenses between sessions. — The state may not, by statute, authorize legislators to receive reimbursement from state funds for their actual expenses incurred in the performance of their official duties between sessions. Legislators are limited to the amounts specified in this section to cover their expenses during and between legislative sessions. 1993 Op. Att'y Gen. No. 93-06.
Legislators serving on commissions. — Legislators can serve as members of commissions created by the legislature and are entitled to receive per diem and expenses at the existing rates. 1951 Op. Att'y Gen. No. 51-5364.
Additional expense coverage impermissible. — An act of the legislature providing for payments to its members to cover expenses, in addition to the compensation provided for in the constitution, would violate the constitution and would be invalid if passed. 1949 Op. Att'y Gen. No. 49-5189.
Monthly salary unconstitutional. — A proposed statute providing for each member of the legislature to receive as compensation for legislative services rendered the state $300 for each month during no part of which the legislature is in session would probably be held unconstitutional by the courts. 1971 Op. Att'y Gen. No. 71-18.
Per diem expenses as compensation. — "Per diem" expenses, as authorized in this section, constitute "compensation" as defined in the Public Employees' Retirement Act (10-11-1 NMSA 1978 et seq.). 1959 Op. Att'y Gen. No. 59-68.
Law reviews. — For article, "The Executive," see 7 Nat. Resources J. 267 (1967).
For article, "The Legislature," see 8 Nat. Resources J. 148 (1968).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 72 Am. Jur. 2d States, Territories and Dependencies § 56.
Per diem compensation of members and officers of legislature, 1 A.L.R. 286.
Illegal appointment or election of member of legislature as affecting right to salary, 7 A.L.R. 1682.
Construction and application of constitutional or statutory provision that member of congress or state legislature shall not, during term for which he is elected, be appointed or elected to any civil office which shall have been created or the emoluments of which shall have been increased during term for which he was elected, 118 A.L.R. 182.
Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.
De facto officer or employee, payment of salary to, as defense to action or proceeding by de jure officer or employee for salary, 64 A.L.R.2d 1375.
81A C.J.S. States §§ 46, 47.