The executive department shall consist of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general and commissioner of public lands, who shall, unless otherwise provided in the constitution of New Mexico, be elected for terms of four years beginning on the first day of January next after their election. The governor and lieutenant governor shall be elected jointly by the casting by each voter of a single vote applicable to both offices.

Such officers shall, after having served two terms in a state office, be ineligible to hold that state office until one full term has intervened.

The officers of the executive department, except the lieutenant governor, shall during their terms of office, reside and keep the public records, books, papers and seals of office at the seat of government.

Upon the adoption of this amendment by the people, the terms provided for in this section shall apply to those officers elected at the general election in 1990 and all state executive officers elected thereafter. (As amended November 3, 1914, November 4, 1958, effective January 1, 1959, November 6, 1962, November 3, 1970 and November 4, 1986.)

ANNOTATIONS

The 1986 amendment, which was proposed by H.J.R. No. 15 (Laws 1986) and adopted at the general election held on November 4, 1986, by a vote of 168,850 for and 106,013 against, substituted "terms" for "the term" in the first paragraph; in the second paragraph, substituted "two terms in a state office" for "one term," substituted "that" for "any" after "hold," and deleted the exception relating to the lieutenant governor at the end; substituted "1990" for "1970" in the last paragraph; and deleted the proviso at the end.

The 1970 amendment, which was proposed by S.J.R. No. 7, § 1 (Laws 1970) and adopted at the general election held on November 3, 1970, with a vote of 79,722 for and 59,426 against, substituted "term of four years" for "term of two years" in the first sentence of the first paragraph, rewrote the second paragraph to provide that after service of one term, executive officers would be ineligible to hold state office until passage of another full term, with an exception for the lieutenant governor, and added the fourth paragraph.

The 1962 amendment, which was proposed by S.J.R. No. 3, § 1 (Laws 1961) and adopted at the general election held on November 6, 1962, with a vote of 41,435 for and 22,383 against, added the second sentence to the first paragraph.

The 1958 amendment, which was proposed by S.J.R. No. 3, § 2 (Laws 1957) and adopted at the general election held on November 4, 1958, with a vote of 48,884 for and 41,795 against, omitted "superintendent of public instruction" from list of officers and added "unless otherwise provided in the constitution of New Mexico" following "who shall" in the first paragraph.

The 1914 amendment, which was proposed by S.J.R. No. 19 (Laws 1913) and adopted at the general election held on November 3, 1914, by a vote of 18,472 for and 12,257 against, amended this section, which formerly read, "The executive department shall consist of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general, superintendent of public instruction and commissioner of public lands, who shall be elected for the term of four years beginning on the first day of January next after their election.

"Such officers, except the commissioner of public lands and superintendent of public instruction, shall be ineligible to succeed themselves after serving one full term. The officers of the executive department, except the lieutenant governor, shall, during their terms of office, reside and keep the public records, books, papers and seals of office at the seat of government," to read, "The executive department shall consist of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general, superintendent of public instruction and commissioner or [of] public lands, who shall be elected for the term of two years beginning on the first day of January next after their election.

"Such officers shall, after having served two consecutive terms, be ineligible to hold any state office for two years thereafter.

"The officers of the executive department except the lieutenant governor, shall during their terms of office, reside and keep the public records, books, papers and seals of office at the seat of government."

Compiler's notes. — An amendment to this section proposed by S.J.R. No. 2, § 1 (Laws 1959), which would have provided for a four-year term for executive officials, would have made such officers ineligible for office for four years after service of two consecutive four-year terms and would have provided for election of such officers, was submitted to the people at the general election held on November 8, 1960. It failed to pass because it did not receive the necessary majority.

An amendment to this section proposed by H.J.R. No. 15, § 1 (Laws 1961), which would have deleted reference to the state auditor from the list of officers in the first paragraph, and an amendment proposed by S.J.R. No. 13, § 1 (Laws 1961), which would have provided for a four-year term for elected executive officials, would have made such officers ineligible for office after service of one four-year term and would have provided for election of such officers, were both submitted to the people at the special election held on September 19, 1961. They failed to pass because they did not receive the necessary majority.

An amendment to this section proposed by S.J.R. No. 25 (Laws 1975), which would have allowed state executive officers to serve two consecutive four-year terms, was submitted to the people at the general election held on November 2, 1976. It was defeated by a vote of 117,167 for and 181,201 against.

An amendment to this section, proposed by S.J.R. Nos. 5 and 6 (Laws 1979), which would have substituted "terms" for "the term" in the first sentence of the first paragraph, substituted "two consecutive terms in a state office" for "one term" in the second paragraph and substituted "1982" for "1970" and deleted the second sentence in the fourth paragraph, was submitted to the people at the general election on November 4, 1980. It was defeated by a vote of 107,676 for and 138,393 against.

Cross references. — For qualifications of officers specified in this section, see N.M. Const., art. V, § 3.

For compensation of such officers, see N.M. Const., art. V, § 12 and 8-1-1 NMSA 1978.

For executive cabinet, see 9-1-3, 9-1-4 NMSA 1978.

Comparable provisions. — Idaho Const., art. IV, § 1.

Iowa Const., art. IV, § 1; amendment 32.

Montana Const., art. VI, §§ 1, 2.

Utah Const., art. VII, §§ 1, 2.

Wyoming Const., art. IV, § 1.

Powers of secretary of state. — The secretary of state does not have the power to change mandatory provisions of the Election Code. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.

Purpose of state auditor. — The office of state auditor was created and exists for the basic purpose of having a completely independent representative of the people, accountable to no one else, with the power, duty and authority to examine and pass upon the activities of state officers and agencies receiving and expending public moneys. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799.

Legislature cannot abolish a constitutional office nor deprive the office of a single prescribed constitutional duty; nor can this be done by indirection, such as depriving the officer of all statutory duties, thereby leaving the office in name only, an empty shell. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799; Torres v. Grant, 1957-NMSC-061, 63 N.M. 106, 314 P.2d 712.

Laws 1965, ch. 287 (former 4-24-1 to 4-24-25, 1953 Comp.), designed to take away from the state auditor all post-audit duties and place them with the legislative audit commission, and making the commission's appointee, the legislative auditor, responsible for substantially all the duties performed by the state auditor, was unconstitutional. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799.

Purely statutory duties transferable. — Since this section is silent as to the duties appertaining to the office of state auditor, the legislature had power to transfer purely statutory duties of the office previously performed by the auditor to another officer of its own choosing. Torres v. Grant, 1957-NMSC-061, 63 N.M. 106, 314 P.2d 712.

Laws 1957, ch. 252 (6-5-1 NMSA 1978), providing that warrants on state funds may be drawn only by director (now secretary) of department of finance and administration, was unconstitutional on theory that it removed from the state auditor, a constitutional officer, substantially all the powers and duties of that office. Torres v. Grant, 1957-NMSC-061, 63 N.M. 106, 314 P.2d 712.

No common-law powers in attorney general. — Absent common-law powers in the solicitor general, they would not have resided in the attorney general in 1912 when our constitution was adopted. The court will not prohibit district judge from proceeding further in action brought in the name of the state by district attorney for Santa Fe county, seeking recovery of certain amounts allegedly paid illegally to chairman of the state highway commission [state transportation commission], without permitting intervention of attorney general. State ex rel. Att'y Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399.

Land commissioner. — In order to avail themselves of the federal land grant provided by the Enabling Act, the people in their constitution created the office of commissioner of public lands. State ex rel. Evans v. Field, 1921-NMSC-082, 27 N.M. 384, 201 P. 1059.

Legislature empowered to create other executive officers. — Enumeration by the constitution of certain officers constituting the executive departments of the state does not necessarily deprive the legislature of the power to create other executive officers, although it cannot abolish any of those created by the constitution; N.M. Const., art. V, § 5, recognizes and provides for the appointment of all officers whose appointment or election is not otherwise provided for. Pollack v. Montoya, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336.

Constitutional and statutory offices distinguished. — There is an obvious distinction between offices created under the constitution itself and executive officers created by statute; the latter are creatures of the legislature, and may have their duties changed or their offices abolished at any time the legislature so desires, unlike the former. State ex rel. Gomez v. Campbell, 1965-NMSC-025, 75 N.M. 86, 400 P.2d 956.

Governor and lieutenant governor to be voted on as unit. — It was the intention of the people, in amending this section and N.M. Const., art. V, § 2, to require that the governor and lieutenant governor be voted on as a unit; lacking one of them, namely the governor, there could be no candidate for lieutenant governor by himself, and mandamus would not lie to compel certification of his name. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445.

Location of legislatively created offices not restricted hereunder. — The constitution makers did not intend to restrict the creation of additional executive offices, but only to specifically provide that the elective officials named must live and keep all of their records at the seat of government. State ex rel. Gomez v. Campbell, 1965-NMSC-025, 75 N.M. 86, 400 P.2d 956.

Standing to sue. — Relators, who were residents, citizens, qualified electors and citizens of the city and county of Santa Fe, suing in behalf of themselves and other citizens of the state similarly situated, were without standing to raise constitutional question in original proceeding in mandamus, seeking to require governor and eleven state boards or commissions to return and thereafter maintain the main offices of the agencies in question at the capital; but the supreme court, in its own discretion, would proceed to determine the question. State ex rel. Gomez v. Campbell, 1965-NMSC-025, 75 N.M. 86, 400 P.2d 956.

State board of finance is an executive agency. 1959 Op. Att'y Gen. No. 59-79.

State tourist bureau is agency of executive branch of the state government and is under the control of the governor. 1957 Op. Att'y Gen. No. 57-166.

Constitutionality of amendment. — The 1970 session of the legislature proposed eight amendments to the constitution, although the attorney general has indicated that under N.M. Const., art. IV, § 5, constitutional amendments may not be considered in even-numbered years. 1965 Op. Att'y Gen. No. 65-212, 1969 Op. Att'y Gen. No. 69-151.

Powers of secretary of state. — Secretary of state has only such powers and authority as specifically granted by the constitution or by statute; he has no inherent or implied power to certify candidates not selected in a manner specifically provided by law. 1960 Op. Att'y Gen. No. 60-151.

Legislature cannot abolish a constitutional office. 1980 Op. Att'y Gen. No. 80-03.

Second sentence of first paragraph of this section is self-executing. 1962 Op. Att'y Gen. No. 62-149.

Reelection. — Incumbents of both state and county offices were eligible to reelection in 1916. 1915 Op. Att'y Gen. No. 15-1507.

Act not invalid. — An official act by the lieutenant governor, recorded "Done at the executive office", is not invalid although actually done at his residence in another city. 1921 Op. Att'y Gen. No. 21-2937.

Law reviews. — For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).

For article, " 'New Mexican Nationalism' and the Evolution of Energy Policy in New Mexico," see 17 Nat. Resources J. 283 (1977).

For student symposium, "Constitutional Revision - The Executive Branch - Long or Short Ballot?" see 9 Nat. Resources J. 430 (1969).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 16, 17, 23, 32, 56, 154 to 156; 72 Am. Jur. 2d States, Territories and Dependencies § 62.

Power to abolish or discontinue office, 4 A.L.R. 205, 172 A.L.R. 1366.

Term of office, "during term for which elected," 5 A.L.R. 120, 40 A.L.R. 945.

Beginning of term, no time fixed for, 80 A.L.R. 1290, 135 A.L.R. 1173.

Power of legislature to extend term of public office, 97 A.L.R. 1428.

Doctrine of estoppel as applicable against one's right to hold a public office or his status as a public officer, 125 A.L.R. 294.

Constitutional or statutory provision referring to "employees" as including public officers, 5 A.L.R.2d 415.

Legislative power to prescribe qualifications for or conditions of eligibility to constitutional office, 34 A.L.R.2d 155.

Construction and effect of constitutional or statutory provisions disqualifying one for public office because of previous tenure of office, 59 A.L.R.2d 716.

Delegation to private persons or organizations of power to appoint or nominate to public office, 97 A.L.R.2d 361.

Removal of public officer for misconduct during previous term, 42 A.L.R.3d 691.

Construction and application, under state law, of doctrine of "executive privilege," 10 A.L.R.4th 355.

67 C.J.S. Officers and Public Employees §§ 5, 13, 66 to 70; 81A C.J.S. States §§ 34, 80, 82.