N.M. Const. art. VIII, § 4
Any public officer making any profit out of public money or using the same for any purpose not authorized by law, shall be deemed guilty of a felony and shall be punished as provided by law and shall be disqualified to hold public office. All public money not invested in interest-bearing securities shall be deposited in national banks in this state, in banks or trust companies incorporated under the laws of the state, in federal savings and loan associations in this state, in savings and loan associations incorporated under the laws of this state whose deposits are insured by an agency of the United States and in credit unions incorporated under the laws of this state or the United States to the extent that such deposits of public money in credit unions are insured by an agency of the United States, and the interest derived therefrom shall be applied in the manner prescribed by law. The conditions of such deposits shall be provided by law. (As amended November 3, 1914, November 7, 1967 and November 4, 1986.)
The 1986 amendment, which was proposed by H.J.R. No. 13 (Laws 1985) and adopted at the general election held on November 4, 1986, by a vote of 198,766 for and 78,948 against, substituted "money" for "moneys" in the first and second sentences and added the provisions relating to credit unions in the second sentence.
The 1967 amendment, which was proposed by H.J.R. No. 11, § 1 (Laws 1967) and adopted at a special election held November 7, 1967, with a vote of 34,669 for and 18,785 against, inserted the provisions authorizing deposits in federal or insured domestic savings and loan associations and added the last sentence.
The 1914 amendment, which was proposed by J.R. No. 10 (Laws 1913) and adopted at the general election held on November 3, 1914, with a vote of 18,468 for and 13,593 against, amended this section, which was formerly Section 10 of this article, and which, prior to this amendment read: "There shall be levied annually for state revenue a tax not to exceed four mills on each dollar of the assessed valuation of the property in the state, except for the support of the educational, penal and charitable institutions of the state, payment of the state debt and interest thereon. For the first two years after this Constitution goes into effect the total annual tax levy for all state purposes exclusive of necessary levies for the state debt shall not exceed twelve mills; and thereafter it shall not exceed ten mills." See also compiler's note to N.M. Const., art. VIII, § 8.
Cross references. — For statutory provisions relating to public money, see 6-1-1 to 6-11-9 NMSA 1978.
Comparable provisions. — Wyoming Const., art. XV, §§ 7, 8.
Meaning of provisions generally. — This section simply means that public funds, when not so used, shall be deposited for safekeeping in the named institutions; but when funds are required to meet public obligations they may be expended in a business way, and according to business methods and practices. Davy v. Day, 1926-NMSC-030, 31 N.M. 519, 247 P. 842.
Section requires judicial finding of misuse. — This section does not require that a public officer be convicted of a felony before he can be disqualified, but merely requires a judicial finding that the officer has knowingly misused public funds. State ex rel. Martinez v. Padilla, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.
"Disqualification" synonymous with "forfeiture". — Though this section speaks of "disqualification" rather than "forfeiture," the terms are synonymous in this context, as both go to eligibility to hold office. State ex rel. Martinez v. Padilla, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.
Court may remove disqualified officers. — Where public officers are disqualified for a misuse of public funds, the court has the jurisdiction to remove them by a writ of quo warranto. State ex rel. Martinez v. Padilla, 1980-NMSC-064, 94 N.M. 431, 612 P.2d 223.
Bonds may be payable outside state. — An irrigation district may issue its bonds and make them payable outside the state. Davy v. Day, 1926-NMSC-030, 31 N.M. 519, 247 P. 842.
Installment sale not void. — Sale by municipality of its light and water system to utility company was not void under this section on ground only part of purchase price was paid in cash and balance was to be paid for on terms. City of Clovis v. Southwestern Pub. Serv. Co., 1945-NMSC-030, 49 N.M. 270, 161 P.2d 878, 161 A.L.R. 504.
Exaction and deposition of interest. — State treasurer is not required to exact interest from banks in which he may, of his own volition, deposit public moneys; but where such moneys do earn interest, the interest is the property of the state, and treasurer may not contract to award it to any person. Catron v. Marron, 1914-NMSC-048, 19 N.M. 200, 142 P. 380.
Appropriations to private corporation prohibited. — The state may not properly appropriate public moneys to the use and benefit of the historical society of New Mexico, a private corporation. 1964 Op. Att'y Gen. No. 64-41.
Any appropriation to a private corporation, whether directly or indirectly made, would clearly be violative of the state constitutional provisions of N.M. Const., art. IV, § 31, art. VIII, § 4 and art. IX, § 14. 1964 Op. Att'y Gen. No. 64-41.
Public money may be invested in interest-bearing securities, but such investment of public funds is limited to those interest-bearing securities as may be provided by statute. 1970 Op. Att'y Gen. No. 70-98.
Loans to private individuals not included. — Investments of public funds are limited to such interest-bearing securities as are provided by statute, which does not include loans to private individuals. 1933 Op. Att'y Gen. No. 33-667.
Loans to resident students. — A student loan plan whereby the state could loan money to resident students who are enrolled in an institution of higher learning in the state, and who otherwise qualify under the federal-guaranteed loan program under the Higher Education Act of 1965, is not inconsistent with this section or N.M. Const., art. IX, § 14. 1970 Op. Att'y Gen. No. 70-23.
Investment in mutual funds or investment trusts. — Investment by the state treasurer in a mutual fund acting as an investment conduit (i.e., an open-end mutual fund or a unit investment trust meeting the requirements of Subsection O(1) of 6-10-10 NMSA 1978) is constitutional. 2000 Op. Att'y Gen. No. 00-03.
Deposit or investment of funds in savings and loan associations. — A savings and loan association, not being a bank, and a deposit or purchase of investment shares in such an institution not being one of the permissible investments of surplus county funds, a county could not deposit or invest any of its funds in such an institution. 1962 Op. Att'y Gen. No. 62-09 (opinion rendered prior to 1967 amendment).
Los Alamos county may not deposit its cemetery funds in a federally insured savings and loan association. 1962 Op. Att'y Gen. No. 62-09 (opinion rendered prior to 1967 amendment).
Interest on deposits. — Although it is provided that interest on county funds deposited or invested by county treasurers shall be applied according to law, it is not imperative that funds be deposited so that they draw interest. But a treasurer may not deposit county funds without interest in a bank of which he is a stockholder, for he personally would profit indirectly thereby. 1914 Op. Att'y Gen. No. 14-1392.
If county treasurer obtains interest on money deposited in banks, it belongs to the county and not to him, and should be accounted for as part of the county funds in his hands. 1915 Op. Att'y Gen. No. 15-1413.
Interest on principal in game protection fund is credited to state general fund. 1980 Op. Att'y Gen. No. 80-17.
Authority to require additional security from banks depends on statutory scheme. — The authority vested in the state board of finance by 6-10-20 NMSA 1978 to require additional security from banks depends on the other provisions of the statutory scheme. 1980 Op. Att'y Gen. No. 80-11.
Law reviews. — For annual survey of New Mexico law relating to administrative law, see 12 N.M. L. Rev. 1 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Funds §§ 7, 8, 10 to 12.
Interest: liability of public officer for interest or other earnings received on public money in his possession, 5 A.L.R.2d 257.
Contributions or subscriptions, construction of statute, forbidding solicitation or acceptance of, by public officers or employees, as regards purpose or object for which funds are solicited, 85 A.L.R. 1146.
Liability of public officer or his bond to public body in respect of fees or charges which he illegally or improperly collected from members of public, 99 A.L.R. 647.
Conduct contemplated by statute which makes neglect of duty by public officer or employee a punishable offense, 134 A.L.R. 1250.
Payments made without compliance with procedure prescribed for payment of claims, liability of officer in respect of, 146 A.L.R. 762.
81A C.J.S. States § 225.