Quo Warranto

NMSA 1978 ch. 44, art. 3

in effect

NMSA 1978, § 44-3-1 [Commencement of proceedings; complaint; writ permissive.]

44-3-1. [Commencement of proceedings; complaint; writ permissive.] The remedies heretofore obtainable by writ of quo warranto and by proceedings by information in the nature of quo warranto shall be commenced by the filing of a complaint as in other civil actions, and it shall not be necessary to sue out such writs in form, but this section shall not prevent nor be construed to prohibit the use by the supreme court and the district courts of the state of writs and proceedings in the forms hitherto used in such cases by such courts. Laws 1919, ch. 28, § 1; C.S. 1929, § 115-101; 1941 Comp., § 26-201; 1953 Comp., § 22-15-1.

NMSA 1978, § 44-3-2 [Trial; time; use of jury permissive.]

44-3-2. [Trial; time; use of jury permissive.] Actions of quo warranto shall be set down and summarily tried as soon as the issues are made up and the court shall have power, if he deems proper, to summon a jury for the purpose and prescribe the manner of summoning the same. Laws 1919, ch. 28, § 2; C.S. 1929, § 115-102; 1941 Comp., § 26-202; 1953 Comp., § 22-15-2.

NMSA 1978, § 44-3-3 [Name of private relator to be shown.]

44-3-3. [Name of private relator to be shown.] When an action shall be brought by the attorney general or district attorney by virtue of this chapter [44-3-1 to 44-3-16 NMSA 1978], on the relation or information of a person or persons, having an interest in the question, the name of such person shall be joined with the state as relator. Laws 1919, ch. 28, § 3; C.S. 1929, § 115-103; 1941 Comp., § 26-203; 1953 Comp., § 22-15-3.

NMSA 1978, § 44-3-4 [Who may bring action; private relators; when action lies.]

44-3-4. [Who may bring action; private relators; when action lies.] An action may be brought by the attorney general or district attorney in the name of the state, upon his information or upon the complaint of any private person, against the parties offending in the following cases: A. when any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office or offices in a corporation created by authority of this state; or, B. when any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall work a forfeiture of his office; or, C. when any association or number of persons shall act, within this state, as a corporation without being duly incorporated, or in case of a foreign corporation, without being duly authorized, to do business within this state. The district attorneys in their respective judicial districts shall exercise the same power and right given by this section to the attorney general in cases which may be limited in their operation to the said district. When the attorney general or district attorney refuses to act, or when the office usurped pertains to a county, incorporated village, town or city, or school district, such action may be brought in the name of the state by a private person on his own complaint. Laws 1919, ch. 28, § 4; C.S. 1929, § 115-104; 1941 Comp., § 26-204; 1953 Comp., § 22-15-4.

NMSA 1978, § 44-3-5 [Cost bond to be posted by private relator.]

44-3-5. [Cost bond to be posted by private relator.] Before any writ shall issue in an action brought upon the complaint or information of a private relator under the provisions of this act [44-3-1 to 44-3-16 NMSA 1978], such private person shall file with the clerk of the court issuing such writ a cost bond in an amount to be fixed by the court, executed and acknowledged as required by law in the case of supersedeas bonds on appeal, to be approved by the clerk of said court, conditioned as now required by law in the case of cost bonds in the district court. Laws 1919, ch. 28, § 5; C.S. 1929, § 115-105; 1941 Comp., § 26-205; 1953 Comp., § 22-15-5.

NMSA 1978, § 44-3-6 [Usurpation of office; allegations in complaint; compensation of defendant; bond; injunction.]

44-3-6. [Usurpation of office; allegations in complaint; compensation of defendant; bond; injunction.] Whenever such action shall be brought against a person for usurping an office, the attorney general, district attorney or person complaining, in addition to the statement of the cause of action, shall also set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto, and in such cases, upon proof by affidavit that the defendant has received or is about to receive the fees and emoluments of the office by virtue of his usurpation thereof, the judge of the district court wherein such proceeding is pending, or a justice of the supreme court, if the proceeding be therein pending, may by order require the defendant to furnish a good and sufficient bond, within a designated time not exceeding fifteen days, executed and acknowledged as required by law in the case of supersedeas bonds on appeal, to be approved by said judge, conditioned that in case the person alleged to be entitled to the office should prevail, the defendant will repay to him all fees and emoluments of the office received by him and by means of his usurpation thereof, and in addition to said bond, or in case of a failure to give said bond, the said judge or justice shall upon good cause shown, issue a writ of injunction directed to the proper disbursing officer enjoining and restraining him from issuing to the defendant or his assigns any warrant, check, certificate or certificates of indebtedness representing fees or emoluments of said office, until the final adjudication of said cause. Laws 1919, ch. 28, § 6; C.S. 1929, § 115-106; 1941 Comp., § 26-206; 1953 Comp., § 22-15-6.

NMSA 1978, § 44-3-7 [Right to elective office; allegations concerning election.]

44-3-7. [Right to elective office; allegations concerning election.] In all actions brought to determine the right to any office it shall be necessary for the plaintiff or relator whenever the defendant is in possession of the office in controversy under a certificate of election issued by the proper officer or board of canvassers, to state in his complaint in what respect such certificate was improperly or illegally issued; and in case it is claimed that the relator received a majority of legal votes cast for the office at any legal election to fill such office he shall also state in such complaint the number of legal votes cast, as far as he may be able so to do, for the relator and for the defendant for such office respectively, and also the number of votes cast for the relator and for the defendant respectively for such office, as determined by the legal canvass of such election. Laws 1919, ch. 28, § 7; C.S. 1929, § 115-107; 1941 Comp., § 26-207; 1953 Comp., § 22-15-7.

NMSA 1978, § 44-3-8 [Time of hearing demurrer, amending complaint, filing answer and trial; application for continuance.]

44-3-8. [Time of hearing demurrer, amending complaint, filing answer and trial; application for continuance.] If a demurrer to the complaint in such actions be filed by the defendant the same shall be heard and determined within six days from the date of service of a copy upon counsel for the plaintiff and relator, and if the demurrer is sustained, plaintiff and relator will be given not to exceed five days to amend the complaint, and if it is overruled then the defendant shall have a like time to file the answer, provided that upon good cause shown the court may extend the time of either party, but in no event shall the time be extended to either party more than four days. The issue as finally made shall stand for trial forthwith; and no continuance of any such cause shall be granted upon the application of either party unless he shall show the absence of a witness or other testimony and they shall be deemed material by the court. The plaintiff or relator may traverse or offer counter evidence to the facts set forth in such application for continuance. Laws 1919, ch. 28, § 8; C.S. 1929, § 115-108; 1941 Comp., § 26-208; 1953 Comp., § 22-15-8.

NMSA 1978, § 44-3-9 [Judgment; nature; expiration of term of office before rendition.]

44-3-9. [Judgment; nature; expiration of term of office before rendition.] In every case such judgment shall be rendered upon the right of the defendant and also upon the right of the party alleged to be entitled, or only upon the right of the defendant, as justice may require. When the action shall not be terminated during the term of the office in controversy it may notwithstanding be prosecuted to completion and judgment rendered, which shall determine the right which any party had to the office, and to the fees and emoluments thereof. Laws 1919, ch. 28, § 9; C.S. 1929, § 115-109; 1941 Comp., § 26-209; 1953 Comp., § 22-15-9.

NMSA 1978, § 44-3-10 [Judgment for relator claiming office; provisions for changing possession; enforcement; punishment for contempt.]

44-3-10. [Judgment for relator claiming office; provisions for changing possession; enforcement; punishment for contempt.] If the judgment be rendered in favor of the person so alleged to be entitled to the office, it shall provide that upon his qualification as required by law, he shall immediately thereafter demand of the defendant in the action all the books and papers and insignia of the office in his custody and control and that the defendant shall immediately comply therewith by turning over to him all of said books, papers and insignia of the office. If the defendant fails or in any wise [way] refuses to comply with said demand, the plaintiff or relator shall have an order of the court in said proceeding citing the defendant as for contempt and directing him to show cause why he should not be punished therefor and, if upon the hearing it be shown that the defendant was guilty of disobeying such order, the court shall impose a fine of not less than one hundred ($100.00) dollars, and not more than one thousand ($1,000.00) dollars, or not less than thirty (30) days nor more than ninety (90) days in the county jail, or both such fine and imprisonment within the limits stated. In addition the court may direct the further imprisonment of the party in contempt until he complies with the order of the court. In addition to the foregoing such proceedings may be had as are provided for by law to compel the delivery of such papers, books and insignia of office. Laws 1919, ch. 28, § 10; C.S. 1929, § 115-110; 1941 Comp., § 26-210; 1953 Comp., § 22-15-10.

NMSA 1978, § 44-3-11 [Costs.]

44-3-11. [Costs.] The prevailing party in such proceedings may recover his costs from his opponent, provided that no costs shall be taxable against the state nor the attorney general when acting as relator, but such costs shall be taxable against and recovered from a private relator whenever the judgment is for the defendant. Laws 1919, ch. 28, § 11; C.S. 1929, § 115-111; 1941 Comp., § 26-211; 1953 Comp., § 22-15-11.

NMSA 1978, § 44-3-12 [Judgment for relator claiming office; provisions concerning compensation; separate action for damages.]

44-3-12. [Judgment for relator claiming office; provisions concerning compensation; separate action for damages.] When the judgment is for the person so alleged to be entitled to the office, he may have included therein a money judgment against the defendant and the surety or sureties on his bond, if furnished as in Section 6 [44-3-6 NMSA 1978] provided, for all fees and emoluments collected by him during the term involved in such case with interest thereon at six percent per annum; and he may recover by separate action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which by virtue of said judgment said defendant has been excluded. Laws 1919, ch. 28, § 12; C.S. 1929, § 115-112; 1941 Comp., § 26-212; 1953 Comp., § 22-15-12.

NMSA 1978, § 44-3-13 [Joinder of defendants.]

44-3-13. [Joinder of defendants.] When several persons claim to be entitled to the same office or franchise, or if they collectively claim to be entitled to exercise the franchise of a corporation created by the authority of this state, one action may be brought against all such persons in order to try their, and each of their, respective rights to such office or franchise. Laws 1919, ch. 28, § 13; C.S. 1929, § 115-113; 1941 Comp., § 26-213; 1953 Comp., § 22-15-13.

NMSA 1978, § 44-3-14 [Judgment finding defendant guilty of usurpation of office; provisions concerning exclusion and costs.]

44-3-14. [Judgment finding defendant guilty of usurpation of office; provisions concerning exclusion and costs.] When a defendant against whom such action shall have been brought shall be adjudged guilty of usurping or intruding into or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and that the plaintiff recover costs against such defendant. Laws 1919, ch. 28, § 14; C.S. 1929, § 115-114; 1941 Comp., § 26-214; 1953 Comp., § 22-15-14.

NMSA 1978, § 44-3-15 [Election contest statutes unaffected.]

44-3-15. [Election contest statutes unaffected.] This act [44-3-1 to 44-3-16 NMSA 1978] shall not be construed to in any way affect the provisions of the statutes now in force in relation to election contests. Laws 1919, ch. 28, § 15; C.S. 1929, § 115-115; 1941 Comp., § 26-215; 1953 Comp., § 22-15-15.

NMSA 1978, § 44-3-16 [Speedy hearing on appeal.]

44-3-16. [Speedy hearing on appeal.] In case of an appeal the supreme court shall advance the case on the docket of said court so as to obtain the most speedy hearing possible. Laws 1919, ch. 28, § 16; C.S. 1929, § 115-116; 1941 Comp., § 26-216; 1953 Comp., § 22-15-16.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18545/index.doFetched: 10/20/2026