If, while the senate is not in session, a vacancy occur in any office the incumbent of which was appointed by the governor by and with the advice and consent of the senate, the governor shall appoint some qualified person to fill the same until the next session of the senate; and shall then appoint by and with the advice and consent of the senate some qualified person to fill said office for the period of the unexpired term.

ANNOTATIONS

Comparable provisions. — Utah Const., art. VII, § 10.

Applicability to appointments to board of regents. — This section does not conflict with N.M. Const., art. XII, § 13. Denish v. Johnson, 1996-NMSC-005, 121 N.M. 280, 910 P.2d 914.

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.

Appointee subject to section but rejection not termination of official existence. — Appointment of member of board of regents of New Mexico normal university (now New Mexico highlands university) by governor five days after death of incumbent whose term of office had expired two days before his death, is nevertheless a vacation appointment to fill a vacancy, and appointee will hold office until, at next session of senate, a new appointment is made, and confirmed by senate. Action of senate in rejecting vacation appointee does not terminate his official existence. 1912 Op. Att'y Gen. No. 12-886 and 1913 Op. Att'y Gen. No. 13-1016.

Recess appointment of regent. — A nominee to the board of regents of an educational institution who is neither confirmed nor rejected by the senate cannot serve as regent unless, following adjournment of both houses of the legislature, the governor makes a recess appointment of the person, in which case, that person may serve as a full-fledged regent until the next session of the legislature. As either a de jure or de facto officer, the regent's actions are valid as to the public. The governor is not obliged to re-submit the former nominee to the next session of the legislature and may make a new nomination. The new nominee may assume the duties as regent, either upon approval by the senate or by a recess appointment by the governor if the senate fails to take any action. 1991 Op. Att'y Gen. No. 91-04.

Section applies to initial appointments. — This section in terms applies only to vacancies in office occurring while senate is not in session, but requirement applies as well to initial appointments to offices created by legislature to be filled while senate is not in session. 1970 Op. Att'y Gen. No. 70-10.

"Next session" means any next session - regular-long, regular-short or special. 1970 Op. Att'y Gen. No. 70-10.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 119, 135, 137.

Right of de facto officer to salary or other compensation annexed to office, 93 A.L.R. 258, 151 A.L.R. 952.

Power of board to make appointment to office or contract extending beyond its own term, 149 A.L.R. 336, 75 A.L.R.2d 1277.

67 C.J.S. Officers and Public Employees §§ 42, 75 to 79; 81A C.J.S. States §§ 84, 87.