Every officer, unless removed, shall hold his office until his successor has duly qualified.

ANNOTATIONS

Cross references. — For succession in county or precinct office, see 10-3-3 NMSA 1978.

For succession of officers of boards of regents for state colleges and universities, see 21-7-5 NMSA 1978.

Appointed county clerk to serve until successor elected. — A county clerk appointed to the office upon the resignation of the elected clerk is to serve as county clerk until a successor clerk is elected by the county voters and duly qualified according to law. State ex rel. Walker v. Dilley, 1974-NMSC-090, 86 N.M. 796, 528 P.2d 209.

Replacement of regents appointed to fill vacancies. — Even though the terms of regents who were appointed to fill vacancies had expired at the end of the terms of their predecessors, they were authorized to remain in office until their successors were appointed by the governor by and with the consent of the senate and they could not be summarily removed. Denish v. Johnson, 1996-NMSC-005, 121 N.M. 280, 910 P.2d 914.

Treasurer of the board of regents of New Mexico state university may continue functioning in that capacity after a new board is appointed, until his successor is elected by the new board and is qualified by filing the proper bond. Bowman Bank & Trust Co. v. First Nat'l Bank, 1914-NMSC-014, 18 N.M. 589, 139 P. 148.

"Removal" contemplates statutory removals, and trial court was without power to oust officer where no successor had qualified. Haymaker v. State ex rel. McCain, 1917-NMSC-005, 22 N.M. 400, 163 P. 248.

Proper to suspend pending removal investigation. — Law (10-4-20 and 10-4-25 NMSA 1978) which confers upon district courts power to suspend public official pending investigation of an accusation looking to his removal does not violate this section. State ex rel. Harvey v. Medler, 1914-NMSC-055, 19 N.M. 252, 142 P. 376.

Proper removal by governor conclusive on court. — If power of removal is vested in governor and he assigns a constitutional cause for removal, his action is conclusive on court. State ex rel. Ulrick v. Sanchez, 1926-NMSC-060, 32 N.M. 265, 255 P. 1077.

Notice and hearing not prerequisites to removal unless specifically provided. — Where no provision of constitution or statute law requires that notice and hearing be given before removal can be made, neither notice nor hearing is a necessary condition precedent to a valid removal. State ex rel. Ulrick v. Sanchez, 1926-NMSC-060, 32 N.M. 265, 255 P. 1077.

Incumbent holds over until successor qualifies. — This section continues incumbent in office beyond his term until his successor has duly qualified. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Expiration of term does not produce vacancy which may be filled by authority having power to fill vacancies. Territory ex rel. Klock v. Mann, 1911-NMSC-076, 16 N.M. 744, 120 P. 313.

Dual office-holding does not produce vacancy. — Where person is appointed to office which is incompatible with office then held, no vacancy is created, except for purpose of supplying another person for the office; court, in absence of qualified successor, is without power to remove officeholder. State v. Blancett, 1918-NMSC-091, 24 N.M. 433, 174 P. 207, dismissed for want of jurisdiction, 252 U.S. 574, 40 S. Ct. 395, 64 L. Ed. 723 (1920); Haymaker v. State ex rel. McCain, 1917-NMSC-005, 22 N.M. 400, 163 P. 248.

Expiration of term does not produce vacancy. 1958 Op. Att'y Gen. No. 58-233.

County surveyor holds his office until his successor is qualified, and as long as he so holds there is no vacancy, and the board cannot appoint. 1921 Op. Att'y Gen. No. 21-2999.

Member of municipal board of education is an "officer" within the meaning of this section. 1957 Op. Att'y Gen. No. 57-43.

Public service commissioner is an "officer." 1971 Op. Att'y Gen. No. 71-09.

Incumbent holds office until successor qualifies. — When newly elected legislator fails to qualify for any reason, former member from district holds over and serves in ensuing legislature. 1943 Op. Att'y Gen. No. 43-4211.

Member of board of nursing home administrators. — Under the holdover provision of this section, a member of the board of nursing home administrators may continue to serve as a member of the board after his term expires and before his successor is duly appointed and qualified for that office. 1989 Op. Att'y Gen. No. 89-08.

Incumbent holds office until after next regular election. — Where county treasurer-elect dies before qualifying, incumbent would hold over until successor is elected at a regular election. 1922 Op. Att'y Gen. No. 22-3632.

Failure to have election effects hold-over. — Since election was not held for office of police judge at time last regular city election was held, person holding office prior to that date continues to hold it. 1956 Op. Att'y Gen. No. 56-6452.

Where appointment is made to fill vacancy in office of county commissioner and no one is elected to fill balance of unexpired term, appointee continues to exercise authority of such office until January 1 next succeeding the general election. 1964 Op. Att'y Gen. No. 64-139.

Even where election deliberately blocked. — Where, at meeting of board of directors of New Mexico insane asylum (now Las Vegas medical center) attended by statutory three-member quorum, on the statutory election day which was the second Monday in March, proceeding to elect a president was begun, and one member of such quorum, to block election, left the room, and remaining two members, less than a quorum, attempted to elect, the election, so attempted, was ineffective as such, and incumbent was entitled to remain in office until arrival of day upon which, next thereafter, an election could legally be held, which would be the second Monday in March of the next year. 1915 Op. Att'y Gen. No. 15-1469.

Creation of vacancy in office does not, ipso facto, terminate right of incumbent to hold the office. Under this constitutional provision every officer, unless removed, holds his office until his successor qualifies. 1960 Op. Att'y Gen. No. 60-154.

If resignation by operation of law occurs, incumbent school superintendent is still entitled to hold office until such time as his resignation is accepted by board of county commissioners and a successor is appointed and qualifies. 1960 Op. Att'y Gen. No. 60-154.

Section not designed to give incumbent additional term. — Failure of duly elected state officer to qualify creates vacancy which may be filled by appointment by governor. This section is not designed to give incumbent an additional term. 1923 Op. Att'y Gen. No. 23-3687.

Incumbent of two consecutive terms ineligible for appointment. — A vacancy in a county office occurs where the successor fails to qualify; the board of county commissioners must appoint a person to fill the vacancy and an incumbent who has already served two consecutive terms is ineligible for that appointment. 1979 Op. Att'y Gen. No. 79-19.

Hold-over and vacancy distinguished. — In the event senate should fail to confirm appointments of governor to highway commission, districts will be represented by commissioners who have been confirmed and who will hold over until governor can make an appointment during first five days of the next legislature, unless a vacancy is created by reason of happening of possible event such as death, resignation, moving from district or some other ineligibility to hold office. 1957 Op. Att'y Gen. No. 57-30.

Section does not apply to "position". — Since this section is applicable only to "offices", if person initially holds a "position," then acceptance of an incompatible office or position creates an automatic vacancy in the first position. 1962 Op. Att'y Gen. No. 62-101.

Incumbent retains authority until successor qualifies. — Incumbent justice of the peace holds over and is a de facto and de jure officer until his successor is elected and qualified. 1919 Op. Att'y Gen. No. 19-2186.

Although vacancy technically and legally existed, absent appointment by governor a resigning judge could legally continue to exercise functions and duties of that office inasmuch as his successor had not yet duly qualified, and thus designation executed by small claims court judge on day after his resignation was competent to empower district judge, who was designated to perform duties of judge of the small claims court, and said district judge could continue to act in that capacity until appointment and qualification of successor to small claims judge or until latter's incapacity was cured, whichever occurred sooner. 1964 Op. Att'y Gen. No. 64-146.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 166 to 169.

"Until" as word of inclusion or exclusion where term of office runs until a specified day, 16 A.L.R. 1100.

Right to resign before taking office, 19 A.L.R. 46.

Employee or officer, status of person as, as affected by tenure of office, 53 A.L.R. 606, 93 A.L.R. 333, 140 A.L.R. 1076.

Beginning or expiration of term of elective officer where no time is fixed by law, 80 A.L.R. 1290, 135 A.L.R. 1173.

When resignation of public officer becomes effective, 95 A.L.R. 215.

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

Constitutionality and construction of statute which fixes or specifies term of office, but provides for removal without cause, 119 A.L.R. 1437.

Duress as ground for withdrawing or avoiding resignation from public office, 132 A.L.R. 975.

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

67 C.J.S. Officers and Public Employees §§ 71 to 73.