Whenever any vacancy in any county office in any of the counties of this state, other than a vacancy in the office of county commissioner, occurs by reason of death, resignation or otherwise, it is the duty of the board of county commissioners of the county where such vacancy has occurred to fill the vacancy by appointment, and the appointee shall be entitled to hold the office until the end of the unexpired term of office.

History: Laws 1907, ch. 6, § 2; Code 1915, § 1219; C.S. 1929, § 33-4233; 1941 Comp., § 10-302; 1953 Comp., § 5-3-2; 2019, ch. 212, § 212.

Cross references. — For appointment of successor, see 10-4-28 NMSA 1978.

For tenure of office of state officers, see N.M. Const. art. XX, § 2.

The 2019 amendment, effective April 3, 2019, provided the term of office for an appointee to a vacancy in a county office; after "hold the office until", deleted "his successor shall be duly elected and qualified according to law" and added "the end of the unexpired term of office".

Interim appointment. — There is no provision in this statute for an interim appointment. Having made the appointment which filled the vacancy, the jurisdiction of the board was exhausted until another vacancy occurred. It is irrelevant that the plaintiff was designated as "acting county clerk" or that she filed her oath of office and bond as an "acting county clerk"; the appointment is for the full legal term, notwithstanding the appointing body's attempt to give it a different duration. State ex rel. Walker v. Dilley, 1974-NMSC-090, 86 N.M. 796, 528 P.2d 209.

Serial appointments. — Where power has been given to appoint to an office and the same has been exercised, any subsequent appointment to the same office will be void unless the prior incumbent has been removed or the office has otherwise become vacant, and an office is not vacant so long as it is supplied, in the manner provided by the constitution or law, with an incumbent who is legally qualified to exercise the power and perform the duties which pertain to it. State ex rel. Walker v. Dilley, 1974-NMSC-090, 86 N.M. 796, 528 P.2d 209.

Effect of hold-over authority after term expiration. — During the period in which a public officer holds over after the expiration of his term, under constitutional or statutory authority entitling him to do so until the election and qualification of a successor, there is no vacancy in office which may be filled by an interim appointment. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Appointee incumbent cannot be displaced by another appointee. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Reelected clerk's resignation prior to beginning of term. — Where a reelected county clerk resigned prior to the beginning of her new term, a vacancy in office was thereby created pursuant to Section 10-3-1 NMSA 1978 and the person properly appointed on the same day as the resignation was entitled to hold the office until her successor was duly elected and qualified; therefore, there was no vacancy in the office for the new term. State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

Last line of section not repealed. — Section 10-3-1 NMSA 1978, creating a vacancy for "failure of the officer to qualify as provided by law" does not repeal by implication the last line of this section, providing that an appointive officer shall hold office until "his successor shall be duly elected and qualified according to law." State ex rel. Rives v. Herring, 1953-NMSC-086, 57 N.M. 600, 261 P.2d 442.

No power to appoint when no power to elect. — Where people had no legal right to elect an assessor for a county, board of county commissioners had no legal right to appoint, and where such appointment was made, there being no vacancy, such appointment was of no legal effect. Territory ex rel. Sandoval v. Albright, 1904-NMSC-021, 12 N.M. 293, 78 P. 204, appeal dismissed, 200 U.S. 9, 26 S. Ct. 210, 50 L. Ed. 346 (1906).

Probate judge vacancy appointments. — A probate judge, who is appointed to replace a probate judge who died in the first year of a four-year term, must participate in the first primary and general elections after the appointment and if elected, the appointee must run again two years later when the original term expires. 2012 Op. Att'y Gen. No. 12-04.

Incumbent ineligible for reappointment. — A vacancy in a county office may occur where a successor in an office 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.

Appointment within a reasonable time. — No mention is made of the time in which the appointment must be made, thus, in the absence of any directives, the appointment must be made within a reasonable time. 1970 Op. Att'y Gen. No. 70-50.

Incumbent may hold over. — Where person elected to office of probate judge dies before taking office, and incumbent of the office is appointed by county commissioners a year before that time upon resignation of the probate judge, the incumbent holds over until a successor is appointed by board of county commissioners. 1936 Op. Att'y Gen. No. 36-1480.

Duration of appointee's term. — A county officer appointed by the board of county commissioners serves until the next succeeding general election. 1924 Op. Att'y Gen. No. 24-3788.

Second appointee authorized. — Where one has been appointed county clerk and his bond has not been approved in 13 days, the commissioners are authorized to appoint another. 1914 Op. Att'y Gen. No. 14-1236.

Scope of powers. — The board of county commissioners has the power to fill vacancies in any county offices, except vacancies occurring in the board itself. 1912 Op. Att'y Gen. No. 12-944.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 C.J.S. Counties § 103.