N.M. Const. art. X, § 6
A. For the purpose of electing some or all of the members of the governing body of a municipality:
(3) if districts have not been established as authorized by law or by resolution, the voters of a municipality, by a petition which is signed by not less than five percent of the registered qualified electors of the municipality and which specified the number of members of the governing body to be elected from districts, may require the governing body to submit to the registered qualified electors of the municipality, at the next regular municipal election held not less than sixty days after the petition is filed, a resolution requiring the districting of the municipality by its governing body. The resolution shall not become effective in the municipality until approved by a majority vote in the municipality. The signatures for a petition shall be collected within a six-months period.
B. Any member of the governing body of a municipality representing a district shall be a resident of, and elected by, the registered qualified electors of that district.
C. The registered qualified electors of a municipality may adopt, amend or repeal a charter in the manner provided by law. In the absence of law, the governing body of a municipality may appoint a charter commission upon its own initiative or shall appoint a charter commission upon the filing of a petition containing the signatures of at least five percent of the registered qualified electors of the municipality. The charter commission shall consist of not less than seven members who shall draft a proposed charter. The proposed charter shall be submitted to the registered qualified electors of the municipality within one year after the appointment of the charter commission. If the charter is approved by a majority vote in the municipality, it shall become effective at the time and in the manner provided in the charter.
D. A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter. This grant of powers shall not include the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent municipal power, nor shall it include the power to provide for a penalty greater than the penalty provided for a petty misdemeanor. No tax imposed by the governing body of a charter municipality, except a tax authorized by general law, shall become effective until approved by a majority vote in the charter municipality.
E. The purpose of this section is to provide for maximum local self-government. A liberal construction shall be given to the powers of municipalities. (As added November 3, 1970.)
The 1970 amendment of Article X, which was proposed by committee substitute for H.J.R. No. 14 (Laws 1970) and adopted at the general election held on November 3, 1970, by a vote of 77,095 for and 60,867 against, added this section.
Compiler's notes. — Eight amendments to the constitution were proposed by the 1970 session of the legislature although the attorney general stated that constitutional amendments may not be considered in even-numbered years. 1965 Op. Att'y Gen. No. 65-212 and 1969 Op. Att'y Gen. No. 69-151.
An amendment to this article by addition of a sixth section to allow home rule for municipalities was proposed by H.J.R. No. 7 (Laws 1969). 1969-70 Op. Att'y Gen. No. 69-151 stated that, since the proposed new constitution was rejected by the voters in 1969, the resolution may be submitted to the people for their approval or rejection at the next general election or at any special election prior to that date which may be called for that purpose. The opinion further stated that the resolution could not be amended by the 1970 legislature. Committee substitute for H.J.R. No. 14 (Laws 1970) withdrew the amendment to this article proposed in 1969 and substituted another proposed amendment on the same subject (which voters approved on November 3, 1970).
Cross references. — For Municipal Charter Act, see 3-15-1 to 3-15-16 NMSA 1978.
For municipal authority to issue franchises, see 3-42-1 NMSA 1978.
Assisted outpatient treatment ordinance preempted by state law. — The Mental Health and Developmental Disabilities Code (Chapter 43, Article 1 NMSA 1978) and the Mental Health Care Treatment Decisions Act (Chapter 24, Article 7B NMSA 1978) create a comprehensive scheme governing the treatment of individuals with mental illness, with or without the consent of those individuals, which together preempt home-rule municipalities from enacting a separate ordinance regulating individuals with mental illness. Protection and Advocacy System v. City of Albuquerque, 2008-NMCA-149, 145 N.M. 156, 195 P.3d 1, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.
Section controls over N.M. Const., art. XI, § 7. City of Albuquerque v. New Mexico State Corp. Comm'n, 1979-NMSC-095, 93 N.M. 719, 605 P.2d 227.
The charter provisions are self-executing in the sense that no further legislative act is necessary. A home rule municipality no longer has to look to the legislature for a grant of power to act, but looks only to legislative enactments to see if any express limitations have been placed on its power to act. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
This section must be read along with the Municipal Charter Act. — This section should not be read independently of the Municipal Charter Act, 3-15-1 NMSA 1978 et seq. This section states that registered qualified electors of a municipality may adopt a charter in the manner provided by law. The Municipal Charter Act is the law enacted by the legislature to implement the home rule amendment. The interpretation of this section is dependent on, not independent of, the Municipal Charter Act. Einer v. Rivera, 2015-NMCA-045, cert. denied, 2015-NMCERT-003.
San Miguel county is not a municipality for the purpose of the home rule amendment. — Where petitioner sought to have the San Miguel county commission appoint a charter commission providing for "home rule" government of the county, petitioner claimed that N.M. Const., art. X, § 6 was self-executing in that it provides that in the absence of law, the governing body of a municipality may appoint a charter commission upon the filing of a petition of registered qualified electors; the court of appeals held that the Municipal Charter Act, 3-15-1 NMSA 1978 et seq., is the law enacted to implement the home rule amendment; there is no absence of law and San Miguel county cannot be considered a municipality for the purpose of the home rule amendment. Einer v. Rivera, 2015-NMCA-045, cert. denied, 2015-NMCERT-003.
Petty misdemeanor penalty for DWI. — Where a municipal ordinance prohibited exactly the same acts as those acts prohibited by state DWI statutes and the only substantive difference between the ordinance and state law was that the ordinance imposed a petty misdemeanor penalty and state law imposed a misdemeanor penalty, the ordinance was not inconsistent with state law. City of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, cert. denied, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1049.
A home rule municipality is free to impose any penalty for DWI that complies with Article X, Section 6 of the constitution of New Mexico and 3-17-1(C)(2) NMSA 1978. City of Rio Rancho v. Mazzei, 2010-NMCA-054, 148 N.M. 553, 239 P.3d 149, cert. denied, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1049.
Albuquerque is home rule municipality. City of Albuquerque v. Chavez, 1978-NMCA-032, 91 N.M. 559, 577 P.2d 457, cert. denied, 91 N.M. 610, 577 P.2d 1256.
Santa Fe is a home rule municipality. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir. 2004).
Curfew ordinance preempted. — The Children's Code preempted a city from enacting a curfew ordinance because the ordinance established criminal sanctions of incarceration and fines for juvenile activity which is not unlawful when committed by adults. ACLU v. City of Albuquerque, 1999-NMSC-044, 128 N.M. 315, 992 P.2d 866.
Districting for municipalities with population over 10,000. — Section 3-12-1.1 NMSA 1978 sufficiently expresses the intent of the legislature to mandate that all municipalities with a population over 10,000 require their candidates for city council to reside in and be elected from single-member districts. Accordingly, it invalidates the city of Gallup's home rule election charter that allows at-large elections for city councilors. Casuse v. City of Gallup, 1987-NMSC-112, 106 N.M. 571, 746 P.2d 1103.
Section not authority for condemnation. — This section merely grants the city general powers and clearly does not constitute express authority nor authority by necessary implication to condemn an existing public electric utility. City of Las Cruces v. El Paso Elec. Co., 904 F. Supp. 1238 (D.N.M. 1995).
Term limits not authorized in home rule municipalities. — The home rule amendment to the constitution does not allow home rule municipalities to impose eligibility requirements for municipal elected office beyond those set forth in the qualification clause and elsewhere in the constitution; thus, the provision of the city charter adopting term limits was not authorized. Cottrell v. Santillanes, 1995-NMCA-090, 120 N.M. 367, 901 P.2d 785, cert. denied, 120 N.M. 213, 900 P.2d 962.
State law preemption test. — The test to determine whether a state law preempts a home rule municipality's ordinance is: 1. Is the state law at issue a general law, and 2. Does the state law at issue expressly deny the power of the home-rule municipalities to regulate in that area? Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305 (D.N.M. 2002), aff'd in part, 380 F.3d 1258 (10th Cir. 2004).
Local enactment of Santa Fe can be preempted by state statute if a general state law denies a home-rule municipality the power to regulate a given subject. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir 2004), aff'g in part 244 F. Supp. 2d 1305 (D.N.M. 2002).
Local ordinance not preempted by state law. — Reading the New Mexico Telecommunications Act (Chapter 63, Article 9A NMSA 1978) and N.M. Const., art. XI, § 2 in pari materia with New Mexico's Municipal Code (Chapter 3 NMSA 1978), and N.M. Const., art. X, § 6, the provisions of a Santa Fe telecommunications ordinance, regulating the power to contract with a service provider and to enforce provisions related to land use and rights of way held by the city, were not preempted by state law, inasmuch as they did not purport to usurp New Mexico's public regulation commission power to issue certificates of public convenience and necessity to providers of public telecommunications services or to regulate rates and quality of service for intrastate telecommunications services. Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305 (D.N.M. 2002), aff'd in part, 380 F.3d 1258 (10th Cir. 2004).
The City of Santa Fe ordinance which established procedures for telecommunications providers seeking access to city-owned rights-of-way is not preempted by state law. Quest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir 2004), aff'g in part 244 F. Supp. 2d 1305 (D.N.M. 2002).
Power to limit domestic wells. — Although 72-12-1 NMSA 1978, which authorizes the state engineer to issue permits to drill domestic wells, is a general law, 72-12-1 NMSA 1978 does not expressly deny, evince an intent to negate, or preempt the power of a home rule municipality to prohibit the drilling of domestic wells that have been permitted by the state engineer. Smith v. City of Santa Fe, 2006-NMCA-048, 139 N.M. 410, 133 P.3d 866, aff'd, 2007-NMSC-055, 142 N.M. 786, 171 P.3d 300.
"General law" distinguished from municipal law. — "General law" means a law that applies generally throughout the state or is of statewide concern as contrasted to "local" or "municipal" law. The subject matter of the general legislative enactment must pertain to those things of general concern to the people of the state. A law general in form cannot, under the constitution, deprive cities of the right to legislate on purely local affairs germane to the purposes for which the city was incorporated. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
The New Mexico Telecommunications Act (Chapter 63, Article 9A NMSA 1978), which regulates telecommunications rates, terms, and conditions of service at the statewide level, is a "general law" within the meaning of Subsection D. Qwest Corp. v. City of Santa Fe, 224 F. Supp. 2d 1305 (D.N.M. 2002), aff'd in part, 380 F.3d 1258 (10th Cir. 2004).
Test to determine whether activity is of general concern or of local concern is whether it is proprietary or governmental in character. City of Albuquerque v. New Mexico State Corp. Comm'n, 1979-NMSC-095, 93 N.M. 719, 605 P.2d 227.
Distinction between governmental and proprietary functions. — If the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and "private" when any corporation, individual or group of individuals could do the same thing. City of Albuquerque v. New Mexico State Corp. Comm'n, 1979-NMSC-095, 93 N.M. 719, 605 P.2d 227.
Proprietary activities are incidental to home rule. — If an activity is carried on by the municipality as an agent of the state, it is of general or public concern. If it is exercised by the city in its proprietary capacity, it is a power incidental to home rule. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Operation of water and sewer system is a proprietary function and not a governmental function. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Limousine service is proprietary rather than governmental function. City of Albuquerque v. New Mexico State Corp. Comm'n, 1979-NMSC-095, 93 N.M. 719, 605 P.2d 227.
"Not expressly denied" construed. — "Not expressly denied" in Subsection D means that some express statement of the authority or power denied must be contained in a general law or otherwise no limitation exists. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Municipality denied power to create overtime compensation schedule. — The mandate under 50-4-2(A) NMSA 1978 to pay for "all services rendered" within a certain time period denies a home rule municipality the power to create its own overtime compensation schedule. Rainaldi v. City of Albuquerque, 2014-NMCA-112.
Example of specific denial of power. — Section 3-18-2 NMSA 1978 is an example of a specific denial of power whereby municipalities are prohibited from imposing an income tax or an ad valorem property tax, but are authorized to levy certain excise taxes if the ordinance imposing such a tax is approved by a majority vote in the municipality. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Power to decide number of city commissioners. — Neither 3-10-1A NMSA 1978 nor 3-14-6A NMSA 1978 is applicable to a home rule municipality to deny it the power to provide for a different number of city commissioners than as prescribed by them because the composition of a municipal government is a matter of local, not statewide concern, and to construe otherwise would frustrate the purpose of this section. State ex rel. Haynes v. Bonem, 1992-NMSC-062, 114 N.M. 627, 845 P.2d 150.
Air Quality Control Act does not deny localities power to impose criminal penalties. — The Air Quality Control Act (Chapter 74, Article 2 NMSA 1978) does not expressly deny the power to impose criminal penalties for violations of the act to counties and municipalities. Chapman v. Luna, 1984-NMSC-029, 101 N.M. 59, 678 P.2d 687, cert. denied, 474 U.S. 947, 106 S. Ct. 345, 88 L. Ed. 2d 292 (1985).
Rate charged for water or sewer service in excess of cost is not a tax or in the nature of a tax, regardless of how the fund derived therefrom is ultimately used. A municipality cannot impose taxes when acting in a proprietary capacity, but only when acting as an arm or agency of the state. A rate charged for a public utility service or product is not a tax, but a price at which and for which the public utility service or product is sold, and ultimate use of surplus funds derived therefrom for the support of municipal government will not cause it to assume the nature of taxes. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Application of sewer or water system revenues not limited. — Sections 3-26-2 and 3-27-4 NMSA 1978 do not limit or prohibit the application of revenues from the sewer or water system operated by a home rule city to other municipal purposes. The only limitation, as in the case of any legislative action or function by the city, is that it exercise its authority in a reasonable manner and act pursuant to constitutional authority. Apodaca v. Wilson, 1974-NMSC-071, 86 N.M. 516, 525 P.2d 876.
Imposition of motor vehicle inspection fee not valid exercise of localities' home rule power. Chapman v. Luna, 1984-NMSC-029, 101 N.M. 59, 678 P.2d 687, cert. denied, 474 U.S. 947, 106 S. Ct. 345, 88 L. Ed. 2d 292 (1985).
Ordinance invalid under NLRA. — Clovis City ordinance which prohibits employers within Clovis from requiring, as a condition of employment, membership in a labor organization or payment of any dues, assessments, or other charges to a labor organization, and further prohibits employers from requiring any person to be referred by a labor organization as a condition of employment or from deducting union dues, fees, assessments or other charges from wages, unless the employee’s authorization for such deductions can be revoked at any time, is invalid under the National Labor Relations Act. New Mexico Fed'n of Labor v. City of Clovis, 735 F.Supp. 999 (D.N.M. 1990).
Municipal power to set a minimum wage higher than that of the Minimum Wage Act (13-4-10 NMSA 1978 et seq.) is not "expressly denied by general law" within the meaning of the home rule amendment. New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007, 138 N.M. 785, 126 P.3d 1149.
Minimum wage ordinance enacted by City of Santa Fe is within the power of the city to enact and is constitutional. New Mexican for Free Enter. v. City of Santa Fe, 2006-NMCA-007, 138 N.M. 785, 126 P.3d 1149.
Voter approval of capital projects. — A home rule municipality may require voter approval of capital projects before the municipality proceeds with a capital project. 2011 Op. Att'y Gen. No. 11-04.
Development agreements. — Under a development agreement, a home rule municipality may reimburse a developer out of gross receipts tax proceeds in exchange for the developer's services in building public infrastructure in connection with a contract to facilitate the construction of retail business establishments. 2002 Op. Att'y Gen. No. 02-02.
Legislature cannot draw district lines. — The legislature can only authorize municipal districting. The legislature itself cannot (and never intended that it would) "draw" the district lines. 1971 Op. Att'y Gen. No. 71-26.
Initial limited effect of Subsection B. — Sections 14-11-2 and 14-13-6 , 1953 Comp. (now 3-12-2 and 3-14-6 NMSA 1978), relating to candidate and elector qualifications, retain their validity despite Subsection B of this section so long as that section remains nonself-executing; that is, until a districting action provided for in Subsection A is taken. 1971 Op. Att'y Gen. No. 71-118.
Unconstitutional limitation on candidacy for Albuquerque mayor. — An Albuquerque city charter provision that no full-time elective official other than the mayor or the mayor pro tem can be a candidate for the office of mayor or the mayor pro tem is unconstitutional because it violates Article VII, section 2 of the New Mexico constitution. 1985 Op. Att'y Gen. No. 85-04.
Approval of proposed charter by governing body of municipality necessary condition to submitting the proposed charter to the electorate for adoption. 1979 Op. Att'y Gen. No. 79-24.
Powers of municipalities determined by legislature. — Except for home rule municipalities, municipalities are established by the legislature and may only exercise those powers and duties as are specifically defined by law. 1979 Op. Att'y Gen. No. 79-28.
General law may operate to preempt certain governmental activity. 1989 Op. Att'y Gen. No. 89-04.
The legislature has preempted the area of governmental provision of public employee and retiree insurance, and therefore a municipality does not possess home rule authority to pay health insurance costs of public retirees where there is no applicable authorizing legislation. 1989 Op. Att'y Gen. No. 89-04.
Ordinance prohibiting local body from imposing any tax increase. — A home rule municipality cannot, pursuant to an initiative petition, enact an ordinance that would prohibit the local governing body from imposing any tax increase, whether property or gross receipts and compensating taxes, without first putting the question of the tax increase to a vote of the qualified electors of the municipality, if such ordinance alters the requirements of the statute imposing the tax. 1990 Op. Att'y Gen. No. 90-20.
Waiver of liquor establishment distance requirement must be uniform and contain definable standards. — Any action taken by a home rule municipality to condition its consent to waive the distance requirement, relating to the location of a liquor establishment, must have uniform application to all persons requesting the waiver and must contain definable standards for the imposition of those conditions. 1980 Op. Att'y Gen. No. 80-23.
Salary increase for members of governing body. — Subject to the provisions of its charter, the governing body of a home-rule municipality may enact an ordinance to increase the salary of its members, but members serving during the term in which such an ordinance is enacted cannot benefit from the increase during that term. 1981 Op. Att'y Gen. No. 81-17.
Municipal authority not removed by general human rights law. — The passage of the Human Rights Act (Chapter 28, Article 1 NMSA 1978) did not remove the authority municipalities already possessed by virtue of the New Mexico constitution and 3-17-1 and 3-18-1 NMSA 1978. 1971 Op. Att'y Gen. No. 71-64.
Municipal ordinances cannot lower or be inconsistent with state standards. 1974 Op. Att'y Gen. No. 74-13; 1971 Op. Att'y Gen. No. 71-64.
Regulation of fireworks. — The Fireworks Licensing and Safety Act (Chapter 60, Article 2C NMSA 1978) denies all municipalities, including those with home rule charters, from regulating fireworks other than as provided by the statute. 1990 Op. Att'y Gen. No. 90-11.
Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M. L. Rev. 1 (1981).
For comment, "Contemplating the Dilemma Of Government as Speaker: Judicially Identified Limits On Government Speech In The Context Of Carter v. City of Las Cruces," see 27 N.M. L. Rev. 517 (1997).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions §§ 125 to 138, 147.
62 C.J.S. Municipal Corporations §§ 13, 108, 124, 390.