N.M. Const. art. XX, § 4
If a vacancy occurs in the office of district attorney or county commissioner, the governor shall fill such vacancy by appointment, and such appointee shall hold such office until the next general election. His successor shall be chosen at such election and shall hold his office until the expiration of the original term. (As amended November 8, 1988.)
The 1988 amendment, which was proposed by S.J.R. No. 1, § 1 (Laws 1988) and adopted at the general election held on November 8, 1988, by a vote of 203,509 for and 159,957 against, in the first sentence, substituted "vacancy occurs" for "vacancy occur" near the beginning and deleted ", judge of the supreme or district court" following "district attorney".
Compiler's notes. — An amendment to this section, proposed by S.J.R. No. 2 (Laws 1981), which would have deleted "judge of the supreme or district court" near the beginning of the first sentence, was submitted to the people at the general election held on November 2, 1982. It was defeated by a vote of 117,601 for and 139,643 against.
Comparable provisions. — Iowa Const., art. IV, § 10.
Montana Const., art. VI, § 8.
Utah Const., art. VII, § 9.
Wyoming Const., art. IV, § 7.
Degree to which section is self-executing. — The first sentence of this section is self-enacting. The second sentence, however, quite obviously needs legislation to provide the manner of nomination and conduct of election and must be considered as not self-executing inasmuch as it merely indicates a principle without laying down rules having force of law. State ex rel. Noble v. Fiorina, 1960-NMSC-107, 67 N.M. 366, 355 P.2d 497.
Terms beginning and ending at same time under all calculations. — Under all equations of vacancy in these offices, excepting only vacancy occurring by creation of a new district attorney, terms of district attorneys will begin and end at same time. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
No qualification that vacancy be by specific reason. — There is no qualification that vacancy be by reason of death, resignation or any other specific reason. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
No incumbent required. — This section does not apply only in those cases where there was an incumbent in office. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
Executive act cannot be exercised by legislature. — Where constitution makes act of appointment an executive one, it cannot be exercised by legislature, nor can legislature rob executive of such power by conferring it on outside agency of its own choosing. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
Section applies to all political parties. — This section cannot be made effective only as to major political parties - it must apply to all parties. State ex rel. Noble v. Fiorina, 1960-NMSC-107, 67 N.M. 366, 355 P.2d 497.
Last sentence effective as to district attorney only. — The last sentence of this section need not have been included insofar as it concerns office of county commissioner. In the first instance, the term was limited to two years, and in the second, N.M. Const., art. VI, §§ 4 and 10, make clear the intent that scattered terms be maintained. Therefore, effective application of last sentence of section is addressed to office of district attorney. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
Last sentence applies to all vacancies following an incumbent; assuming death of incumbent in office of district attorney, there can be no doubt that appointee or his successor (elected at general election following appointment) serves only until termination date of term of original incumbent. State ex rel. Swope v. Mechem, 1954-NMSC-011, 58 N.M. 1, 265 P.2d 336.
Contrary charter provisions allowed. — Charter of combined city and county organization may provide for filling vacancies in commission thereof contrary to provisions of this section. 1957 Op. Att'y Gen. No. 57-204.
Resignations prior to approval of 1988 amendment. — The office of any supreme court justice, district court judge, or metropolitan court judge who resigns before the 1988 general election must be placed on the 1988 general election ballot in accordance with the requirements of 1-8-8 NMSA 1978. 1988 Op. Att'y Gen. No. 88-52.
Appointee need not reside in district. — Appointment of county commissioner, where vacancy exists, may be made regardless of district wherein person resides so long as person is otherwise qualified under laws of state and is a resident of the county. 1954 Op. Att'y Gen. No. 54-5907.
"Until the next general election" means the next general election immediately following the appointment. 1960 Op. Att'y Gen. No. 60-151; 1989 Op. Att'y Gen. No. 89-11.
Term of office of appointee terminates at time of general election next succeeding his appointment. 1964 Op. Att'y Gen. No. 64-139.
No one elected for balance of unexpired term. — Where appointment is made to fill vacancy in office of county commissioner and no one is elected to fill balance of unexpired term though another person is elected for a regular term, appointee continues to exercise authority of such office until January 1 of the next succeeding general election or until the person elected qualifies if said person does not qualify on January 1. 1964 Op. Att'y Gen. No. 64-139.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions § 254; 63A Am. Jur. 2d Prosecuting Attorneys § 8; 63A Am. Jur. 2d Public Officers and Employees §§ 105, 135, 137.
Death or disability of one elected to office before qualifying as creating a vacancy, 74 A.L.R. 486.
Reconsideration of appointment to fill vacancy, 89 A.L.R. 141.
Election within contemplation of constitutional or statutory provisions relating to filling vacancy in public office occurring before expiration of regular term, 132 A.L.R. 574.
Military service, induction or voluntary service for, as creating vacancy in public office or employment, 143 A.L.R. 1470, 147 A.L.R. 1427, 148 A.L.R. 1400, 150 A.L.R. 1447, 151 A.L.R. 1462, 152 A.L.R. 1459, 154 A.L.R. 1456, 156 A.L.R. 1457, 157 A.L.R. 1456.
Validity of contract by officer with public for rendition of new or special service to be paid for in addition to regular compensation, 159 A.L.R. 606.
Vacancy in public office within constitutional or statutory provision for filling vacancy, where incumbent appointed or elected for fixed term and until successor is appointed or elected, is holding over, 164 A.L.R. 1248.
Conviction of offense under federal law or law of another state or county as vacating accused's holding of state or local office, 20 A.L.R.2d 732.
Power to appoint public officer for term commencing at or after expiration of term of appointing officer or body, 75 A.L.R.2d 1277.
Delegation to private persons or organizations of power to appoint or nominate to public office, 97 A.L.R.2d 361.
20 C.J.S. Counties § 64; 27 C.J.S. District or Prosecuting Attorneys § 3; 67 C.J.S. Officers and Public Employees §§ 74 to 79.