N.M. Const. art. IV, § 30
Except interest or other payments on the public debt, money shall be paid out of the treasury only upon appropriations made by the legislature. No money shall be paid therefrom except upon warrant drawn by the proper officer. Every law making an appropriation shall distinctly specify the sum appropriated and the object to which it is to be applied.
Cross references. — For limitations on subjects to be embraced in general appropriation bills, and provision that other appropriations should be made by separate bills, see N.M. Const., art. IV, § 16.
Comparable provisions. — Wyoming Const., art. III, § 35.
Provision is designed to ensure legislative control of public purse. Gamble v. Velarde, 1932-NMSC-048, 36 N.M. 262, 13 P.2d 559.
Constitutional powers of the legislature and executive branches when administering federal funds. — When federal funds come with specific conditions attached, the executive branch is merely administering the funds consistent with the requirements established by the federal government, and no legislative appropriation is required. If a state retains wide discretion, then such funds must be appropriated—a function constitutionally reserved for the legislature. State ex rel. Candelaria v. Grisham, 2023-NMSC-031
When the state retains wide discretion in administering federal funds, the power to appropriate the funds falls exclusively within the purview of the legislative branch. — Where the federal government, through the federal American Rescue Plan Act of 2021 (ARPA), provided approximately $1.75 billion in COVID-19-related financial assistance to New Mexico, and where the New Mexico legislature attempted to appropriate the ARPA funds through the General Appropriation Act of 2021, and where the governor vetoed the portions that related to ARPA funds, asserting that the legislature lacked the authority to direct the executive’s administration of federal funds, and where the governor also spent approximately $600 million of the $1.75 billion in ARPA funds, and where petitioners filed suit against the governor, seeking a writ of mandamus and stay prohibiting her from expending or appropriating any additional ARPA funds, the New Mexico Supreme Court issued a prohibitory writ of mandamus and order providing that the governor and state treasurer shall not transfer, encumber, commit, expend or appropriate any additional ARPA funds absent legislative appropriation, because the amount of discretion the federal government left to New Mexico in allocating the ARPA funds compelled a conclusion that the federal funds were subject to legislative appropriation. State ex rel. Candelaria v. Grisham, 2023-NMSC-031.
Construction. — The constitutional limitation upon legislative power and practice should receive a reasonable construction with a view to effectuate their sound purpose, without unnecessarily or arbitrarily hampering legislation. Gamble v. Velarde, 1932-NMSC-048, 36 N.M. 262, 13 P.2d 559.
Section prohibits expenditure of money unless appropriated by legislature, and an appropriation act is required to fix the amount and object of expenditure. State ex rel. Constitutional Convention v. Evans, 1969-NMSC-139, 80 N.M. 720, 460 P.2d 250.
Salary provisions as continuing appropriations. — Where the constitution creates an office and prescribes the salary for it, the necessity for legislative appropriation is dispensed with on the ground that such a provision in a constitution is proprio vigore an appropriation; this rule has been extended to a general law fixing the amount of salary of a public officer, and prescribing its payment at particular periods. State ex rel. Fornoff v. Sargent, 1913-NMSC-074, 18 N.M. 272, 136 P. 602.
Laws 1915, ch. 59, creating the office of state traveling auditor (since abolished) and fixing his salary, in connection with Laws 1889, ch. 32, §§ 2 and 3 (since repealed) and Laws 1897, § 2597, amounted to a continuing appropriation for such salary. Dorman v. Sargent, 1915-NMSC-049, 20 N.M. 413, 150 P. 1021.
Laws 1905, ch. 5 (since repealed) which created the office of the superintendent of insurance and provided a permanent salary for him, amounted to a continuing appropriation out of the insurance fund and required no subsequent appropriations by the legislature. State ex rel. Chavez v. Sargent, 1914-NMSC-018, 18 N.M. 627, 139 P. 144.
There is considerable doubt as to validity of setting a salary in the appropriation bill, which is different than that provided for in a specific statute. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799.
Withdrawal of contributions only proper upon appropriation. — Although there may be no legislation conferring upon the state board of public accountants authority to solicit voluntary contributions from its members, once such contributions are deposited in the state treasury, where they become commingled with other funds of the board, they can only be withdrawn through appropriations made by the legislature upon warrants drawn by the proper officer. New Mexico State Bd. of Pub. Accountancy v. Grant, 1956-NMSC-068, 61 N.M. 287, 299 P.2d 464.
Refunds unlawful. — Former 19-1-15 NMSA 1978, relating to erroneous payments on lease or sale of state lands, violated this section insofar as it assumes to authorize repayments of moneys covered into the treasury and funded, as the property of the state, on the mere say-so of an administrative officer. McAdoo Petroleum Corp. v. Pankey, 1930-NMSC-100, 35 N.M. 246, 294 P. 322.
Excise tax refund provisions valid. — Laws 1931, ch. 31 (former 64-26-31, 1953 Comp. et seq.), relating to refund of certain gasoline excise tax funds, sufficiently complied with provisions of this section. Gamble v. Velarde, 1932-NMSC-048, 36 N.M. 262, 13 P.2d 559.
Appropriation to constitutional convention. — Expenditure of funds which had been appropriated to the constitutional convention could not be directed or controlled by the president thereof. State ex rel. Constitutional Convention v. Evans, 1969-NMSC-139, 80 N.M. 720, 460 P.2d 250.
Appropriation is only statement of maximum which may be spent. State ex rel. Constitutional Convention v. Evans, 1969-NMSC-139, 80 N.M. 720, 460 P.2d 250.
Mandamus for drawing of warrant denied. — An irrigation district has no clear legal right to draw on income from land grant by congress, the use of which was limited to establishment of reservoirs and hydraulic engineering, and mandamus directed to the drawing of warrant thereon will be denied. Carson Reclamation Dist. v. Vigil, 1926-NMSC-019, 31 N.M. 402, 246 P. 907.
Complaint to recover fees. — In action to recover license plate fees, complaint not charging that fees were collected for or on behalf of state or that they had been turned over to state treasurer was not defective for failing to show that an appropriation had been made by the legislature for refund of moneys collected. Lord v. Gallegos, 1942-NMSC-021, 46 N.M. 221, 126 P.2d 290.
Provision is designed to insure legislative control of public purse. 1967 Op. Att'y Gen. No. 67-108.
This constitutional provision is directed toward state's money in treasury and its purpose is to insure legislative control and to exclude executive control over the purse strings of the state. 1965 Op. Att'y Gen. No. 65-151.
Applicability. — Provisions of this section are not applicable in instances where the funds are not paid out of the treasury by appropriation. 1962 Op. Att'y Gen. No. 62-88.
Federal funds in suspense accounts not affected. — New Mexico may accept federal matching funds which are eventually to be paid to charitable or benevolent institutions, which moneys, under 6-10-3 NMSA 1978, are put in suspense accounts and not deposited in the state treasury, without violating this section, since this money never becomes money of the state. 1967 Op. Att'y Gen. No. 67-07.
Section inapplicable to agency's disposition of appropriation. — This section imposes limits on the legislature's power to appropriate money and the treasurer's power to disburse it, but has nothing to do with an administrative agency's disposition of its appropriation. 1975 Op. Att'y Gen. No. 75-10.
Appropriations required. — To specify a purpose or use for public funds, the legislature is required by the constitution to prescribe the amount appropriated and the object to which it is to be applied. 1972 Op. Att'y Gen. No. 72-15.
With exception of payment on public debt, no money can be paid out of state treasury except upon appropriation made by legislature. 1931 Op. Att'y Gen. No. 31-75.
Appropriation for refund of erroneous payments. — The constitutional provision has been held by the court to prohibit the payment of any moneys out of the state treasury except upon appropriation, even though the moneys were erroneously paid to the state of New Mexico. 1956 Op. Att'y Gen. No. 56-6477.
Governor may not spend revenue-sharing funds without legislative appropriation. 1973 Op. Att'y Gen. No. 73-09.
Contributions by universities to executive department salaries. — Contributions by state universities to executive department officer salaries are consistent with the New Mexico constitution only if the legislature appropriated the contributions for that purpose or if the contributions are paid in exchange for services the cabinet officers perform for the universities. 2007 Op. Att'y Gen. No. 07-06.
Encumbrance of unappropriated sums improper. — A state agency may not undertake to legally obligate itself or the state to pay sums by contract beyond such amounts as are currently appropriated to such agency, nor may it purport in any manner to bind future legislatures to provide appropriations for payment of rentals for such public body. 1964 Op. Att'y Gen. No. 64-74.
Pledging of current funds for subsequent years not permissible. — The pledging of funds for one fiscal year to meet obligations of one or more subsequent fiscal years in order to prevent a reversion pursuant to specific language in the general appropriations act would violate this constitutional appropriation requiring legislative appropriations. 1967 Op. Att'y Gen. No. 67-71.
Restrictions on term of agency lease. — In the absence of express statutory provision otherwise providing, a state agency, department, bureau or commission may enter into a lease for rental of office space or other similar facilities only for such period of time as there exists legislative appropriations or other funds which are available to cover rental payments which will become legally due under the provisions of the lease contract. 1964 Op. Att'y Gen. No. 64-74.
A lease contract can be entered into by a state agency, department, bureau or commission for longer than the period of time for which the legislature has made appropriations or other funds available only if it expressly provides that the public body is under no obligation to continue such contract or to pay rental sums if legislative appropriations are not available or if the legislature by subsequent enactment restricts, reorganizes or abolishes such agency. 1964 Op. Att'y Gen. No. 64-74.
Authority required for tax refund. — An overpayment of a succession tax may not be refunded except on authority of the legislature. 1930 Op. Att'y Gen. No. 30-105.
Refunds unlawful. — In the absence of a specific refund statute in the act creating the state bank examiner (now director of the financial institutions division of the commerce and industry department), his refund of a registration fee would be in contravention of this section and therefore unlawful. 1958 Op. Att'y Gen. No. 58-165.
Refund of nomination fees by state fair permissible. — A refund by the New Mexico state fair of nomination fees paid for the 1965 and 1966 New Mexico thoroughbred and quarter horse futurities upon the inadvertent nomination of certain ineligible race horses would not violate this section, as the fees had been deposited in a trust account, and had never reached the state treasury, and furthermore, the state fair had received this money not as fees paid to a state agency but as fees paid to a licensee of the state racing commission. 1965 Op. Att'y Gen. No. 65-151.
Correction of clerical error not improper. — Where the crediting of $677.35, which was really federal and not state money, to the general fund instead of to the vocational rehabilitation account was a clerical error, it could be corrected without violation of this section. 1964 Op. Att'y Gen. No. 64-04.
Appropriations to specify sums and objects. — It is axiomatic that under this section of the constitution money may be paid out of the treasury only upon appropriation made by the legislature, and that every appropriation law must distinctly specify the sum appropriated and the object to which it is to be applied. 1958 Op. Att'y Gen. No. 58-08.
Aligned with the power over appropriating funds to the state treasury for the operation of the state government is the authority to designate and specify how these funds will be spent. 1968 Op. Att'y Gen. No. 68-64.
Object of appropriation sufficiently specific. — Appropriation to state board of finance "for emergencies and necessary expenses affecting the public welfare" sufficiently specified the object of the appropriation; the legislature itself performed the legislative duty of making the appropriation and delegated to the state board of finance the power to make the factual determination on which disbursement of the appropriated fund hinges. 1959 Op. Att'y Gen. No. 59-79.
Specified purposes controlling. — Funds which have been appropriated to an agency may be expended only for the purpose or object specified in the appropriation. 1957 Op. Att'y Gen. No. 57-305.
Funds appropriated by the legislature to be used for acquisition of land and planning expenses for long-range capitol grounds and building improvement may not be used for the purpose of supervision, salvage planning, maintenance and protection of the old penitentiary buildings and site. 1957 Op. Att'y Gen. No. 57-305.
Bonds issued for airport other than the one specified. — Where the legislature clearly and unambiguously authorized issuance of severance tax bonds to enlarge the facilities of an existing airport in Questa, those bonds could not be used for a new airport at a site different from the existing airport. 1988 Op. Att'y Gen. No. 88-46.
Transfer between general and specific accounts must be authorized. — Public moneys cannot lawfully be transferred from the general appropriation account to a separate or specific fund unless authorized by statute. 1937 Op. Att'y Gen. No. 37-1668.
Legislature may transfer non-reverting funds to the general fund to address budgetary problems. — The legislature is the only branch of government authorized to appropriate funds, and nothing in this section prohibits the legislature from transferring funds from a fund whose authorizing statute specifies that its funds do not revert to the general fund, as long as the transfer is made by the passage of an appropriations bill. Transfers from the Enhanced 911 Fund (3/15/17), Att'y Gen. Adv. Ltr. 2017-03.
Transfers between line items not permissible. — The state highway commission [state transportation commission] may not take money appropriated by the legislature for one specific purpose and transfer it to another legislative line item for another purpose, if the total amount appropriated for one category would thereby be increased at the expense of the total for another category; if such a procedure were followed without legislative authorization therefor, it would permit the use of moneys for a purpose not authorized by the legislature when it made the appropriation. 1967 Op. Att'y Gen. No. 67-108.
Object of highway appropriations. — The policy-making power with reference to state highways and public roads formerly held by the legislature is now in the state highway commission [state transportation commission], but the legislature still retains the responsibility for designating the object to which appropriations are to be applied. 1952 Op. Att'y Gen. No. 52-5591.
Control of highway expenditures. — Neither the state board of finance nor the governor can exercise any control over expenditure of highway funds. 1952 Op. Att'y Gen. No. 52-5588.
State board of finance cannot alter specific appropriations in the absence of statutory or constitutional authorization. 1948 Op. Att'y Gen. No. 48-5129.
Advance determination of exact expenditure unnecessary. — The fact that the sum appropriated must be distinctly specified does not mean that the sum to be expended must be accurately determined in advance, but only that a maximum amount or limit be fixed. 1959 Op. Att'y Gen. No. 59-181.
Investment of trust proceeds controlled by Enabling Act. — The state treasurer is authorized to pay, out of the proceeds of the trust lands granted by § 10 of the Enabling Act, the necessary and reasonable costs of investment of the same, and this section cannot be construed so as to prohibit such actions; hence, investment of such funds in federal housing administration mortgages was not prohibited on grounds that no appropriation had been made to pay the one-half of one percent service charge essential for purchase of such mortgages. 1953 Op. Att'y Gen. No. 53-5788.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Funds §§ 36 to 48.
Liability for work done or materials furnished, etc., for state or federal governments in excess of appropriations, 19 A.L.R. 408.
Budget provisions of constitution or statute in relation to appropriation of state funds, 40 A.L.R. 1067.
Mandamus to compel appropriation for payment of salary of public officer or employee, 81 A.L.R. 1253.
Taxes illegally or erroneously exacted, constitutionality of statute providing for refund of, without providing means to pay it, 98 A.L.R. 289.
Unemployment insurance legislation, validity of provisions of, as to appropriations, 100 A.L.R. 697, 106 A.L.R. 243, 108 A.L.R. 613, 109 A.L.R. 1346, 118 A.L.R. 1220, 121 A.L.R. 1002.
Reimbursement of public officer or employee for money paid or liability incurred by him in consequence of breach of duty, validity of appropriation for, 155 A.L.R. 1438.
Statutory provisions creating office and fixing salary as continuing appropriation, 164 A.L.R. 928.
81A C.J.S. States §§ 230 to 240, 242 to 244.