Any incumbent of any public office or employment of the state of New Mexico, or of any of its departments, agencies, counties, municipalities or political subdivisions whatsoever, who shall heretofore have entered or who hereafter shall enter military, naval, United States merchant marine, or other armed service of the United States of America, and who by reason of the duties imposed upon him in such service shall fail to devote his time to the performance in person of the duties of such office or employment shall, by entering or continuing in such service, be deemed to have waived and renounced the salary of, and to have abandoned such office or employment until, but only until, he shall have been relieved from active duty in such service and shall have resumed the personal performance of the duties of such public office or employment.

History: 1941 Comp., § 10-338, enacted by Laws 943, ch. 123, § 1; 1953 Comp., § 5-3-38.

Purpose of statute. — Laws 1943, ch. 123 (Sections 10-6-1 to 10-6-6 NMSA 1978) had as its purpose the preservation to incumbents of their offices despite their failure to perform the duties thereof while in the armed services, and guarding against disruption of essential functions of government. State ex rel. Sanchez v. Stapleton, 1944-NMSC-056, 48 N.M. 463, 152 P.2d 877.

Challenge by public officer. — A public officer who enters military service cannot challenge provisions of act which temporarily diverts emoluments of the office during his inability to perform the duties of such office, in view of applicability of the removal and vacancy statutes which would normally foreclose him from retaining any right to either emoluments or salary pertaining to such office. State ex rel. Sanchez v. Stapleton, 1944-NMSC-056, 48 N.M. 463, 152 P.2d 877.

Challenge by person not legally appointed. — One who was not legally appointed to the post of deputy assessor cannot question constitutionality of act which provides for carrying on duties of public officer who entered military service. State ex rel. Sanchez v. Stapleton, 1944-NMSC-056, 48 N.M. 463, 152 P.2d 877.

Section is applicable to members of municipal boards of education. 1944 Op. Att'y Gen. No. 44-4629.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Induction or voluntary enlistment in military service as creating a vacancy in, or as ground of removal from, 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.

Constitutionality of statute providing for payments to public officers or employees who enter the military service of the United States, or to their dependents, 145 A.L.R. 1156.

20 C.J.S. Counties § 103; 62 C.J.S. Municipal Corporations § 502.