N.M. Const. art. X, § 1
The legislature shall classify the counties of the state. No county officer shall receive any fees or emoluments other than an annual salary, as established by the board of county commissioners. All fees collected by a county official shall be paid into the treasury of the county. (As amended November 5, 2024.)
The 2024 amendment, proposed by S.J.R. No. 16 (Laws 2024), and adopted at the general election held on November 5, 2024, by a vote of 520,128 for and 271,961 against, provided that the salaries of county officers shall be established by the board of county commissioners, removing the duty to set county officers’ salaries from the legislature, and clarified that any fees collected by a county official shall be paid into the county treasury; in the first sentence, after "The legislature shall", deleted "at its first session", and after "classify the counties", deleted "and fix salaries for all county officers, which shall also apply to those elected at the first election under this constitution" and added "of the state"; in the second sentence, after "shall receive", deleted "to his own use", and after "an annual salary", deleted "provided by law", and added "as established by the board of county commissioners"; and in the third sentence, after "All fees", deleted "earned by any officer shall be by him" and added "by a county official shall be".
Compiler's notes. — An amendment to this section proposed by S.J.R. No. 7 (Laws 2007), which would have allowed a board of county commissioners to provide a midterm salary increase for elected county officers, was submitted to the people at the general election held on November 4, 2008. It was defeated by a vote of 184,781 for and 511,900 against.
Cross references. — For prohibition of extra compensation to public officers, see N.M. Const., art. IV, § 27.
For limitation of state officer to salary, see N.M. Const., art. XX, § 9.
For general salary provisions, see 4-44-1 to 4-44-45 NMSA 1978.
Comparable provisions. — Arizona Const., Art. XXII, § 17.
Idaho Const., art. XVIII, §§ 7, 8.
Intent of section. — Prior to adoption of the constitution, county officers had been compensated for their services upon a fee basis, but by N.M. Const., art. IV, § 27, and this section, it was intended to dispense with such method and to substitute in lieu thereof a salary method, with provision that such compensation should be neither increased nor diminished during term of any such officer. State ex rel. Peck v. Velarde, 1935-NMSC-033, 39 N.M. 179, 43 P.2d 377; State ex rel. Gilbert v. Board of Comm'rs, 1924-NMSC-001, 29 N.M. 209, 222 P. 654, 31 A.L.R. 1310.
All county officers on salary. — The constitution requires all county officers to be placed upon a salary basis and prohibits them from receiving any other fees or emoluments of office. James v. Board of Comm'rs, 1918-NMSC-106, 24 N.M. 509, 174 P. 1001.
Midterm salary increases unconstitutional. — Salary increases granted by county commissions under 4-44-12.3 NMSA 1978, for elected officials who were in midterm on the date the increases took effect, violated Article IV, § 27 of the New Mexico constitution. State ex rel. Haragan v. Harris, 1998-NMSC-043, 126 N.M. 310, 968 P.2d 1173.
Salary law required. — Under this section, the compensation of a county officer is dependent upon enactment of a salary law, and he cannot recover for his services until such a law is passed, and then only as provided by said act. No law had been heretofore enacted fixing the compensation of county clerk or tax assessor. Herbert v. Board of Cnty. Comm'rs, 1913-NMSC-053, 18 N.M. 129, 134 P. 204; State ex rel. Delgado v. Romero, 1912-NMSC-010, 17 N.M. 81, 124 P. 649.
Services deemed gratuitous without law. — Services of a public officer are deemed gratuitous unless a compensation is fixed therefor by statute. State ex rel. Baca v. Montoya, 1915-NMSC-013, 20 N.M. 104, 146 P. 956.
Reimbursement proper where sheriff has paid out sums for employment of deputies. State ex rel. Garcia v. Board of Comm'rs, 1916-NMSC-030, 21 N.M. 632, 157 P. 656.
No reimbursement when deputy county official was not entitled to compensation. State ex rel. Baca v. Montoya, 1915-NMSC-013, 20 N.M. 104, 146 P. 956.
The last clause relating to fees is self-executing. State ex rel. Delgado v. Romero, 1912-NMSC-010, 17 N.M. 81, 124 P. 649.
Constitution prohibits any emoluments additional to the "salary" fixed by law; a county clerk who fails to appoint a deputy to serve as clerk of district court is not entitled to compensation additional to statutory salary when he personally serves in that capacity. Nye v. Board of Comm'rs, 1932-NMSC-009, 36 N.M. 169, 9 P.2d 1023.
District attorney cannot collect and retain to his own use any fees or emoluments of office under this section or under N.M. Const., art. XX, § 9. State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, 125 P. 617.
County clerk can only charge and accept statutory fee for issuing marriage license, regardless of the hour it is issued, and no sums in the form of an additional charge or gratuity can be accepted. 1953 Op. Att'y Gen. No. 53-5665.
Irrelevant that services performed for another jurisdiction. — County sheriff was not entitled to fees received by him for services performed in a city or town court where he had made arrests and fines had been assessed against, and paid by, defendants. 1916 Op. Att'y Gen. No. 16-1772.
Sheriff is chargeable with fee paid for the execution of the death penalty even though it does come from the state and not the county. 1917 Op. Att'y Gen. No. 17-2013.
County clerk may serve as deputy game warden. — This inhibition applies only to county officers, and there is no objection to a county clerk receiving, as deputy game warden, fees for issuing and reporting licenses and the receipts thereof. 1923 Op. Att'y Gen. No. 23-3691.
County treasurer may be paid for services as physician. — County treasurer may, as a physician, examine insane persons, attend prisoners at the county jail, and exhume a body by order of the district court, and receive compensation therefor. 1913 Op. Att'y Gen. No. 13-1141.
School superintendent cannot act as teacher. — The county superintendent of schools cannot draw a salary therefor and at the same time act as school teacher. 1920 Op. Att'y Gen. No. 20-2739.
Service as both county commissioner and teacher consistent with section. — This section, which provides in part that no county officer shall receive to his own use any fees or emoluments other than the annual salary provided by law, applies only to those situations where extra compensation is received for performing duties prescribed by law to a particular office and for which a fixed compensation is provided. Clearly, the services performed by a school teacher do not fall within the duties prescribed by statute for the office of county commissioner. Therefore, an individual who has been elected to the office of county commissioner may legally accept a salary from a teaching position in an institution of higher learning in this state, as well as the salary provided by law for acting as a county commissioner. 1958 Op. Att'y Gen. No. 58-238.
Fees to be paid into county treasury. — Fees collected by county officers cannot be used for their compensation, even though no other compensation has been provided by the legislature, but must be turned into the county treasury. 1912 Op. Att'y Gen. No. 12-913.
County commissioner serving as tribal council member. — A Native American may serve as a tribal council member and as a county commissioner at the same time, as long as his duties as tribal council member do not physically interfere with his duties as county commissioner during the ordinary working hours of that position and the functions of the two positions are not otherwise incompatible. 1990 Op. Att'y Gen. No. 90-14.
Salary law required. 1955 Op. Att'y Gen. No. 55-6291; 1915 Op. Att'y Gen. No. 15-1664.
Cut-off date and consequences. — The fee system for county officers having been abolished on January 6, 1912, a treasurer whose term expired on January 15, 1912, could collect a percentage on his tax collection only for six days. The percentage for collections from January 6 to January 15 could not be based on his fees for the previous year, but he would have to look to the legislature for relief. 1913 Op. Att'y Gen. No. 13-1133.
Judge prohibited from accepting gratuity for marriage ceremony. — Except for municipal judges, a judge may not accept a gratuity in connection with the performance of a marriage ceremony without violating the New Mexico constitution. 1991 Op. Att'y Gen. No. 91-09.
Probate judge may perform marriage ceremony but cannot charge fee for such service for himself or the county. 1931 Op. Att'y Gen. No. 31-27.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Subdivisions § 33; 63A Am. Jur. 2d Public Officers and Employees §§ 431 to 434.
Challenging acts or proceedings by which its boundaries are affected, right of county as to, 86 A.L.R. 1373.
Constitutional provision fixing or limiting salary of public officer as precluding allowance for expenses or disbursements, 5 A.L.R.2d 1182.
20 C.J.S. Counties §§ 5, 107 to 121; 67 C.J.S. Officers and Public Employees §§ 219, 224.