N.M. Const. art. IX, § 10
No county shall borrow money except for the following purposes:
G. the purchase of books and other library resources for libraries in the county.
In such cases, indebtedness shall be incurred only after the proposition to create such debt has been submitted to the registered voters of the county and approved by a majority of those voting thereon. No bonds issued for such purpose shall run for more than fifty years. Provided, however, that no money derived from general obligation bonds issued and sold hereunder shall be used for maintaining existing buildings and, if so, such bonds shall be invalid. (As amended November 3, 1964, November 2, 1982, November 8, 1988 and November 5, 1996.)
The 1996 amendment, which was proposed by H.J.R. No. 18 (Laws 1996) and adopted at the general election held November 5, 1996, by a vote of 228,751 for and 227,580 against, added Subsection F and redesignated existing Subsection F as Subsection G.
The 1988 amendment, which was proposed by H.J.R. No. 10, § 2 (Laws 1988) and adopted at the general election held on November 8, 1988, by a vote of 228,519 for and 140,676 against, added Subsection F and substituted "registered voters" for "qualified electors" in the first sentence of the last paragraph.
The 1982 amendment, which was proposed by H.J.R. No. 9 (Laws 1982), was adopted at the general election held on November 2, 1982, by a vote of 156,113 for and 97,644 against. The amendment restructured the former language which had one undesignated paragraph containing three sentences into the present provisions. The former first sentence was broken to constitute the present first paragraph and first sentence of the second paragraph, while the former second and third sentences are now the second and third sentences of the present second paragraph. The amendment, in the present first paragraph, substituted "following purposes" for "purpose of" in the introductory language, deleted "or" and "and" at the end of Subdivisions A and B, respectively, and added Subdivisions C to E. In the first sentence of the present second paragraph, the amendment inserted "indebtedness shall be incurred" and deleted "who paid a property tax therein during the preceding year" following "of the county."
The 1964 amendment, which was proposed by S.J.R. No. 2 (Laws 1963) and adopted at the general election held on November 3, 1964, with a vote of 70,619 for and 47,858 against, inserted "remodeling and making additions to" following "erecting" near the beginning of the first sentence, substituted "has" for "shall have" preceding "been submitted" near the middle of the first sentence and added the proviso.
Compiler's notes. — Section 4-49-1 NMSA 1978, based upon the adoption of the amendment to this section proposed by S.J.R. No. 2 (Laws 1963), took effect when this amendment was adopted November 3, 1964.
An amendment to this section proposed by H.J.R. No. 7 (Laws 1991), which would have inserted "repairing" following "remodeling" in Subsection A, was submitted to the people at the general election held on November 3, 1992. It was defeated by a vote of 225,749 for and 246,366 against.
An amendment proposed by H.J.R. No. 9, (Laws 1993), which would have added a new Subsection F providing for acquiring real estate for open space and other public purposes and redesignating the existing Subsection F as Subsection G, was submitted to the people at the general election held on November 8, 1994. It was defeated by a vote of 192,861 for and 210,001 against.
Cross references. — For bonds for county courthouses, see 4-49-1 to 4-49-21 NMSA 1978.
Comparable provisions. — Idaho Const., art. VIII, § 3.
Utah Const., art. XIV, §§ 3, 4, 7.
Wyoming Const., art. XVI, §§ 3, 4.
Intent of section. — Framers of constitution were thinking of a debt repayment from proceeds of property tax levy against the general assessment rolls, and the debt whose creation is prohibited or limited is one pledging the general faith and credit of the subdivision, with a consequent right in the holders of such indebtedness to look to the general taxing power to satisfy the debt. State ex rel. Capitol Addition Bldg. Comm'n v. Connelly, 1935-NMSC-045, 39 N.M. 312, 46 P.2d 1097, 100 A.L.R. 878.
Section is not self-executing, and therefore, counties, when proceeding to issue bonds for courthouse and jail purposes, must proceed according to the general laws provided in such cases. State ex rel. Haas v. Board of Comm'rs, 1927-NMSC-030, 32 N.M. 309, 259 P. 37.
De Baca County Act (Laws 1917, ch. 11, § 17) (now obsolete), authorizing a bond issue for courthouse and jail purposes, was inoperative since it did not direct county to proceed in accord with general law. State ex rel. Haas v. Board of Comm'rs, 1927-NMSC-030, 32 N.M. 309, 259 P. 37.
Section 4-11-3 NMSA 1978 authorized Harding county, created thereby, to issue bonds for courthouse and jail purposes without submission to a vote of the people as required by this section. Martinez v. Gallegos, 1922-NMSC-053, 28 N.M. 170, 210 P. 575.
No applicability to liability of new county to parent county. — This section has no application to right of legislature, in creation of a new county, to fix liability of new county to parent county, and to require new county to issue bonds therefor. State ex rel. Perea v. Board of Comm'rs, 1919-NMSC-030, 25 N.M. 338, 182 P. 865.
No applicability when debt payable from special funds. — The limitation contained in this section, prohibiting a county from incurring an indebtedness without first submitting the question of the indebtedness to a vote of the electorate, does not apply when the obligation is payable solely from a special fund or funds and the county has not pledged its general full faith and credit. Bolton v. Board of Cnty. Comm'rs, 1994-NMCA-167, 119 N.M. 355, 890 P.2d 808, cert. denied, 119 N.M. 311, 889 P.2d 1233 (1995).
Debt limitations applicable only to specified governmental subdivisions. — When Sections 10, 11, 12 and 13 of Article IX of the constitution are considered together, it appears that its framers intended to apply debt limitations only to the specified governmental subdivisions and to leave to the sound discretion of the legislature whether to limit other government agencies created by the legislature. Albuquerque Metro. Arroyo Flood Control Auth. v. Swinburne, 1964-NMSC-206, 74 N.M. 487, 394 P.2d 998.
Special taxing district held not to create debt. — If legislature lawfully created a special taxing district, embracing territory within one county, for purpose of raising funds for improvement of portion of a new state road therein, then anticipation of revenue raised by such tax would not create a debt against the county in violation of this section, but simply a debt of taxpayers within such special district repayable out of proceeds of special tax. Borrowdale v. Board of Cnty. Comm'rs, 1915-NMSC-093, 23 N.M. 1, 163 P. 721, 1917E L.R.A. 456 (1916).
A "debt" in the constitutional sense is an unconditional obligation. Allstate Leasing Corp. v. Board of County Comm'rs, 450 F.2d 26 (10th Cir. 1971).
Leasing of chattels not "debt". — The leasing of chattels by a municipality has been held to be a "contingent" obligation and, as such, not a "debt" as is prohibited under this section. Allstate Leasing Corp. v. Board of Cnty. Comm'rs, 450 F.2d 26 (10th Cir. 1971).
Lease-purchase agreements. — If an option price required to be paid by a county is nominal or nonexistent, a purported lease may be treated as a sale, creating the type of future economic commitment that requires the arrangement be approved by the voters, pursuant to this provision. Montano v. Gabaldon, 1989-NMSC-001, 108 N.M. 94, 766 P.2d 1328.
Lease with option to purchase agreement requiring county to make semi-annual payments, denominated as rent, for the use of a new facility to be built by a private contractor on county-owned land was in essence an installment-purchase agreement, and such lease created indebtedness within the meaning of this provision. Montano v. Gabaldon, 1989-NMSC-001, 108 N.M. 94, 766 P.2d 1328.
Words "no county shall borrow money except for the purpose (specified)" as used in this section are clear enough in their meaning to exclude the purchase of voting machines by pledging the general faith and credit of the county. Shoup Voting Mach. Corp. v. Board of Comm'rs, 1953-NMSC-032, 57 N.M. 196, 256 P.2d 1068.
A board of county commissioners cannot bind the county by the creation of a debt for the payment of which it has no power to pledge the county's credit. Shoup Voting Mach. Corp. v. Board of Comm'rs, 1953-NMSC-032, 57 N.M. 196, 256 P.2d 1068.
A board of county commissioners could not carry out the provisions of Laws 1951, ch. 192 (repealed), authorizing the purchase of voting machines to be paid for in annual installments over not more than 10 years, without incurring an indebtedness which is forbidden by the constitution. Shoup Voting Mach. Corp. v. Board of Comm'rs, 1953-NMSC-032, 57 N.M. 196, 256 P.2d 1068.
Word "necessary" construed. — As used in this section, "necessary" is construed, not as meaning "indispensable," but as synonymous with "needful". Hutcheson v. Atherton, 1940-NMSC-001, 44 N.M. 144, 99 P.2d 462.
Coronado memorial buildings not "necessary public buildings". — Laws 1939, ch. 149, authorizing county bond issues to be employed in constructing public auditoriums in fulfillment of legislative authorization to counties to co-operate with the New Mexico Fourth Centennial Coronado Corporation in conducting expositions commemorative of the four hundredth anniversary of the arrival in New Mexico in 1540 of Francisco Vasquez de Coronado, could not be sustained as authorizing necessary public buildings. Hutcheson v. Atherton, 1940-NMSC-001, 44 N.M. 144, 99 P.2d 462.
Juvenile detention home is a "necessary public building". — Juvenile detention home for county of first class was a necessary public building within this section. Hutcheson v. Atherton, 1940-NMSC-001, 44 N.M. 144, 99 P.2d 462.
Legislative classification of juvenile detention homes for first class counties as necessary public buildings is entitled to great weight when question comes to court for determination. Hutcheson v. Atherton, 1940-NMSC-001, 44 N.M. 144, 99 P.2d 462.
Erection of school buildings. — Fact that one provision of the constitution authorizes school districts to buy a site upon which to erect school buildings, being thus more specific than another section, does not necessarily establish an intent to limit use of funds provided for under the other section to the erection of a bare building without site or equipment. Board of Cnty. Comm'rs v. McCulloh, 1948-NMSC-028, 52 N.M. 210, 195 P.2d 1005.
Bonds for remodeling. — This section prevented a county from issuing bonds for purpose of remodeling a courthouse. Board of Comm'rs v. State, 1939-NMSC-031, 43 N.M. 409, 94 P.2d 515 (decided prior to 1964 amendment).
Bonds for construction of buildings on removal of county seat may not be issued until county commissioners have complied with constitutional requirements. Orchard v. Board of Comm'rs, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41.
Anticipation of tax levies no violation. — Laws 1921, ch. 48, § 17 (temporary), providing for certificates of indebtedness to anticipate tax levies of a newly created county, did not violate this section. State v. Southern Pac. Co., 1929-NMSC-027, 34 N.M. 306, 281 P. 29.
Bases for bond question before voters. — A road bond question may be placed before the voters either by special election on petition of voters under 67-6-3 NMSA 1978 or at a general election by resolution of the board of county commissioners under this section. State ex rel. Board of Cnty. Comm'rs v. Jones, 1984-NMSC-087, 101 N.M. 660, 687 P.2d 95.
Duty to call election. — Board of county commissioners is under a legal obligation to call an election only when a petition is presented which meets all of the prescribed constitutional and statutory requirements, and any efforts on their part to reframe the petition to read in a legal manner would be ineffective since the petition must be in legal form at the moment it is presented to them. Kiddy v. Board of County Comm'rs, 1953-NMSC-023, 57 N.M. 145, 255 P.2d 678.
Mandamus was properly refused where there was an unsettled judicial question as to whether board of county commissioners had been presented with a petition which called for a single or a dual proposition. Kiddy v. Board of Cnty. Comm'rs, 1953-NMSC-023, 57 N.M. 145, 255 P.2d 678.
Variance between notice and actual use fatal. — Bond issue for erection of courthouse and jail was void where notice of election had stated the bond issue to be for erecting, remodeling and repairing the existing courthouse. There must be a substantial compliance with the constitution. Tom v. Board of Cnty. Comm'rs, 1939-NMSC-030, 43 N.M. 292, 92 P.2d 167.
Propositions. — Proposals on two or more propositions may be submitted at same election and on same ballot, but each one must stand alone so that voters may have opportunity to express their choice independently upon each proposition. Carper v. Board of Cnty. Comm'rs, 1953-NMSC-022, 57 N.M. 137, 255 P.2d 673.
Over-all test as to whether proposal to build several county buildings constitutes one or more propositions "is the existence of a natural relationship between the various structures or objects united in one proposition so that they form but one rounded whole". Carper v. Board of Cnty. Comm'rs, 1953-NMSC-022, 57 N.M. 137, 255 P.2d 673.
Petition, under law providing for building of courthouses, jails and bridges, asking for a vote upon bond issues for courthouse and jail, designated separately, did not authorize submission by ballot as a joint proposition, and an election at which the ballot submitted a single proposition, for or against "courthouse and jail bonds", was void. Dickinson v. Board of Comm'rs, 1929-NMSC-077, 34 N.M. 337, 281 P. 33.
Proposal to build two hospitals with isolation wards within same county, 35 miles apart, illegally joined two propositions and was properly disapproved by board of county commissioners. Kiddy v. Board of Cnty. Comm'rs, 1953-NMSC-023, 57 N.M. 145, 255 P.2d 678; Carper v. Board of County Comm'rs, 1953-NMSC-022, 57 N.M. 137, 255 P.2d 673.
The language of Laws 1947, ch. 148, § 4 (4-48B-6 NMSA 1978) leaves no doubt that the legislature regarded the construction of each hospital, with or without an isolation ward, as a separate and independent proposition. Carper v. Board of Cnty. Comm'rs, 1953-NMSC-022, 57 N.M. 137, 255 P.2d 673.
Lease-purchase agreements. — Despite the language of 6-6-12 NMSA 1978, certain lease purchase agreements may constitute the creation of "debt" within N.M. Const., art. IX, §§ 10, 11 and 12. 1969 Op. Att'y Gen. No. 69-39.
A contract in the nature of a lease-purchase or installment purchase agreement, with a right of termination by the lessee, used as a method of financing the possible purchase of personal property by public entities of the state is constitutional and does not constitute the creation of a debt. 1976 Op. Att'y Gen. No. 76-20.
It is not necessary that ballots used have concealed number. 1938 Op. Att'y Gen. No. 38-2013.
Issuance of bonds. — When a city and a county build a hospital jointly, they must issue their respective bonds separately. 1947 Op. Att'y Gen. No. 47-5071.
Section relates to debt-contracting powers of counties, and provides that none can be contracted except after the proposition has been approved by a majority of the people voting thereon. 1933 Op. Att'y Gen. No. 33-656.
Section is a limitation on, and not a grant of, power to issue bonds. Board of Comm'rs v. State, 1939-NMSC-031, 43 N.M. 409, 94 P.2d 515; 1980 Op. Att'y Gen. No. 80-02.
Enumeration of buildings by legislature. — While it is clear that the legislature cannot declare, carte blanche, any possible class of buildings as necessary, without violating this section, it certainly can declare certain other buildings other than those now enumerated as necessary. 1960 Op. Att'y Gen. No. 60-45.
Limitation on expenditure of obligation bonds. — In addition to actual construction-related costs, the proceeds of general obligation bond issues of a county may be expended only for the purchase of the construction site and for equipment which becomes an integral part of the building being constructed (i.e., fixtures) or which is of a permanent or nondepletable nature and reasonably necessary to the use of the building for its intended purpose (e.g., beds, mattresses and other permanent furnishings). 1980 Op. Att'y Gen. No. 80-02.
Bonds for remodeling. — An issuance of bonds by a county for the purpose of "remodeling" an old hospital was violative of this section. 1953 Op. Att'y Gen. No. 53-5678 (opinion rendered prior to 1964 amendment).
Effect of 1964 amendment. — This section was amended effective November 3, 1964, for the purpose of permitting bond moneys to be used for the purpose of remodeling and making additions to necessary public buildings. Prior to the amendment the county was limited, insofar as public buildings were concerned, to the use of bond moneys for the purpose of erecting necessary public buildings. 1966 Op. Att'y Gen. No. 66-01.
The 1964 amendment also added the proviso at the end of the section, which is designed to put the county on notice as to what it cannot do with bond moneys, and does not invalidate bonds in the hands of the bondholders. The purpose for which the bond moneys are to be used must be set out in the resolution and publication thereof, and if one such specified purpose is maintaining existing buildings, the bonds shall be invalidated at that point and cannot be issued even if a buyer has been selected. 1966 Op. Att'y Gen. No. 66-01.
Section inapplicable to revenue bonds repayable from special retirement fund. — This constitutional provision has been interpreted to pertain exclusively to general obligation bonds which are retired by funds resulting from the levy of a general property tax and not to revenue bonds which are repayable from a special fund created for their retirement. 1978 Op. Att'y Gen. No. 78-15.
Anticipation of tax levies. — The provisions of Laws 1929 (S.S.), ch. 1 (temporary), relating to the issuance of debentures by the state highway commission (state transportation commission) to anticipate the collection of tax levies, do not violate this section. 1929 Op. Att'y Gen. No. 29-106.
Definition of "lease-purchase arrangement" is invalid. — The last sentence of Subsection C of 6-15A-3 NMSA 1978, which equates a lease-purchase arrangement with "any debt" incurred for the acquisition of educational technology equipment, improperly expands the exception for lease-purchase arrangements under Subsection C of Section 11 of Article IX of the constitution of New Mexico beyond what the drafters intended and is invalid. 2008 Op. Att'y Gen. No. 08-01.
Employment contract between county board and county manager. — Employment contract between board of county commissioners and county manager, while not in violation of the Bateman Act (6-6-11 NMSA 1978 et seq.), which was enacted to require municipalities to live within their annual incomes, was nonetheless void because it created an unconstitutional debt of the county and was an illegal attempt to bind future boards. 1988 Op. Att'y Gen. No. 88-67.
Proposition to create debt to be submitted to vote. — The board of county commissioners cannot mortgage old courthouse and jail to raise funds to buy equipment for new courthouse, for county cannot borrow money except where proposition to create debt is submitted to qualified electors of county who paid property tax in prior year and with approval of majority voting thereon. 1936 Op. Att'y Gen. No. 36-1447.
Necessity of notice. — The constitutional provisions of this section, although not specifying the exact procedure for conducting an election upon a bond issue, do imply (by reference) proper notice to the voters before the election. 1953 Op. Att'y Gen. No. 53-5656.
Variance between notice and actual use fatal. — Under the laws of the state of New Mexico, which require a specific procedure for notice of an election and holding of an election on a bond issue, any variance between the notice and the actual use of the funds would be fatal. 1953 Op. Att'y Gen. No. 53-5656.
The laws of this state require a specific procedure for notice and holding of an election on a bond issue, and any variance between the notice and the actual use of the funds would be fatal; it would prohibit splitting of the proceeds of bond sums by erecting one hospital for the osteopaths and another for the M.D.'s where that was not set forth in the notice. 1953 Op. Att'y Gen. No. 53-5656.
Conducting of election. — There being no constitutional inhibition against the use of one box for depositing ballots on the county bond proposition and other ordinary ballots cast at the general election, in the absence of a statutory restriction, the two types of ballots may be deposited in the same ballot box. And as to county fair bonds, no such statutory restriction exists. 1956 Op. Att'y Gen. No. 56-6524.
Law reviews. — For comment, "The Last Bastion Crumbles: All Property Restrictions on Franchise Are Unconstitutional," see 1 N.M. L. Rev. 403 (1971).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions §§ 167 to 178; 64 Am. Jur. 2d Public Securities and Obligations §§ 50, 54, 65.
Lease of property by municipality or other political subdivision, with option to purchase same, as evasion of constitutional or statutory limitation of indebtedness, 71 A.L.R. 1318, 145 A.L.R. 1362.
Pledge or appropriation of revenue from utility or other property in payment therefor as indebtedness within constitutional or statutory indebtedness of municipality or other political subdivision, 72 A.L.R. 687, 96 A.L.R. 1385, 146 A.L.R. 328.
Obligation to meet which money is appropriated at time of its creation as indebtedness within limitation, 92 A.L.R. 1299, 134 A.L.R. 1399.
Constitutional or statutory debt limit as affected by existence of separate political units with identical or overlapping boundaries, 94 A.L.R. 818.
Liability for tort or judgment based on tort as within constitutional or statutory limitation on municipal indebtedness or tax rate for municipal purposes, 94 A.L.R. 937.
Allowance to contractor for extras in accordance with provisions of contract made before debt limit was reached as creation of indebtedness within meaning of debt limit provisions, 96 A.L.R. 397.
Funding or refunding obligations as subject to conditions respecting limitation of indebtedness or approval of voters, 97 A.L.R. 442.
Limitation on power to tax as limitation on power to incur indebtedness, 97 A.L.R. 1103.
Liability imposed by reason of benefits from improvement made by independent public unit as debt within meaning of debt limitation, 98 A.L.R. 749.
Interest on indebtedness as part of debt within constitutional or statutory debt limitation, 100 A.L.R. 610.
Obligation payable from special fund created by fees, penalties or excise taxes as within debt limit, 100 A.L.R. 900.
Limitation of municipal indebtedness as affected by combination or merger of two or more municipalities, 103 A.L.R. 154.
Installments payable under continuing service contract as present indebtedness within organic limitation of municipal indebtedness, 103 A.L.R. 1160.
Municipal debt limit as affected by obligations to municipality, 105 A.L.R. 687.
Power of legislature to add to or make more onerous the conditions or limitations prescribed by constitution upon incurring public debts, 106 A.L.R. 231.
Constitutional or statutory provision limiting state or municipal indebtedness or taxation or regulating issuance of bonds as affecting bonds or other obligations authorized but not delivered prior to adoption or effective date of the provision, 109 A.L.R. 961.
Exception regarding "emergency," "urgency," etc., within statute or charter forbidding municipal corporation to expend money or incur indebtedness in absence, or in excess, of appropriation, 111 A.L.R. 703.
Aggregate of rent for entire period of lease of property to municipality as present indebtedness for purposes of condition of incurring, or limitation of amount of, municipal debt, 112 A.L.R. 278.
What are "necessary expenses" within exception in constitutional or statutory provision requiring vote of people to authorize contracting of debt by municipality, county or other political body, or limiting amount of such indebtedness, 113 A.L.R. 1202.
Right of municipality to invoke constitutional provisions against acts of state legislature, 116 A.L.R. 1037.
Actual levy or permissible maximum levy of taxes as determining limit of indebtedness of municipality, county or other political unit, under statute or constitutional provision limiting indebtedness with reference to income or revenue, 122 A.L.R. 330.
Existing sinking fund as a factor in determining whether indebtedness or proposed indebtedness of municipality or other political subdivision exceeds constitutional or statutory limit, 125 A.L.R. 1393.
Structures: inclusion of several structures or units as affecting validity of submission of proposition to voters at bond election, 4 A.L.R.2d 617.
Presumptions and burden of proof as to violation of or compliance with public debt limitation, 16 A.L.R.2d 515.
Inclusion of tax-exempt property in determining value of taxable property for debt limit purposes, 30 A.L.R.2d 903.
Validity of governmental borrowing or expenditure for purposes of acquiring, maintaining or improving stadium for use of professional athletic team, 67 A.L.R.3d 1186.
20 C.J.S. Counties §§ 185 to 192.