NM Stat § 44-2-5 (2021)
2021 New Mexico Statutes|Chapter 44 - Miscellaneous Civil Law Matters|Article 2 - Mandamus|Section 44-2-5 - [Adequate remedy at law; writ will not issue; who may obtain writ.]

The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested. History: Laws 1884, ch. 1, § 39; C.L. 1884, § 1994; C.L. 1897, § 2762; Code 1915, § 3414; C.S. 1929, § 86-104; 1941 Comp., § 26-105; 1953 Comp., § 22-12-5. ANNOTATIONSI. GENERAL CONSIDERATION.Mandamus can only be resorted to when other remedies fail. State ex rel. Sweeney v. Second Judicial Dist. Court, 1912-NMSC-033, 17 N.M. 282, 127 P. 23. Municipality without right to appeal may enforce rights by mandamus. — When a municipality is not given a right to appeal and thus has no plain, speedy or adequate remedy at law to enforce its rights to protect the health, safety, welfare and morals of its residents, these rights may be enforced by mandamus. City of Santa Rosa v. Jaramillo, 1973-NMSC-119, 85 N.M. 747, 517 P.2d 69. Where remedy at law exists writ will not lie. — As respondents had a plain, speedy and adequate remedy at law from the order denying their motion to quash the writs of garnishment, to wit, an appeal by trial de novo therefrom to the district court, mandamus did not lie to correct the claimed error by respondent, if in fact error was committed. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79. Writ lies if no remedy in ordinary course of law. — Refusal of state corporation commission (now public regulation commission) to draw a voucher for the salary of an employee of the commission entitles him to resort to the remedy of mandamus, as the ordinary course of law does not afford a plain, speedy and adequate remedy. State ex rel. Stephens v. SCC, 1918-NMSC-125, 25 N.M. 32, 176 P. 866. Writ may be maintained if plain ministerial duty required. — Where a teacher, by positive provision of law, has a fixed tenure of office, or can be removed only in a certain prescribed manner, and where consequently it is the plain ministerial duty to retain him, mandamus can be maintained. Mandamus is not an available remedy for enforcement of contract rights because there is another adequate remedy in the ordinary course of the law, in the form of an action for damages. State ex rel. Sittler v. Board of Educ., 1913-NMSC-062, 18 N.M. 183, 135 P. 96. Writ can compel canvass of election returns. — Under this section, an information was properly filed as the basis of proceeding for writ of mandamus to compel board of county commissioners to canvass election returns. Territory ex rel. Lewis v. Board of Cnty. Comm'rs, 1888-NMSC-015, 5 N.M. (Gild., E.W.S. ed.) 1, 16 P. 855. Alternative writ and answer only pleadings considered. — The only pleadings to be considered on a petition for the writ are the alternative writ and the answer thereto. Schreiber v. Baca, 1954-NMSC-110, 58 N.M. 766, 276 P.2d 902. The petition for the writ becomes functus officio when granted. Schreiber v. Baca, 1954-NMSC-110, 58 N.M. 766, 276 P.2d 902. II. PLAIN AND ADEQUATE.Writ cannot lie where adequate law or appeal remedy exists. — Mandamus will not lie where there exists a plain, speedy and adequate remedy at law; nor will it lie where there is an adequate remedy by appeal. Montoya v. Blackhurst, 1972-NMSC-058, 84 N.M. 91, 500 P.2d 176. Writ will not lie to enforce contract where adequate remedy exists. — Mandamus will not issue to enforce a contract, even though a legally enforceable contract exists, if there is an adequate remedy at law. Shepard v. Board of Educ., 1970-NMSC-067, 81 N.M. 585, 470 P.2d 306. Writ cannot lie until administrative remedies exhausted. — Mandamus is a proper remedy only after a petitioner has exhausted his administrative remedies. Shepard v. Board of Educ., 1970-NMSC-067, 81 N.M. 585, 470 P.2d 306. Inadequacy not absence determines propriety of writ. — It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of a writ of mandamus; and it is not excluded by other remedies, which are not adequate to secure the specific relief needed, nor by the existence of a specific remedy in equity. Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170. Writ where alternative remedy insufficient. — City may be compelled to hold a grievance proceeding under a city merit system, where there was evidence that the city officials had failed in their duty to provide a required remedy, and, the alternative, a suit in contract, would not have been plain, speedy, or adequate. Lovato v. City of Albuquerque, 1987-NMSC-086, 106 N.M. 287, 742 P.2d 499. Writ lies where appeal process has proven inadequate and has caused prejudice. — Where the director of the labor relations division of the New Mexico department of workforce solutions (director) failed to comply with the Public Works Minimum Wage Act, §§ 13-4-10 to -17 NMSA 1978, which requires the director to set prevailing wage rates and prevailing fringe benefit rates according to applicable collective bargaining agreements for certain public works projects, mandamus was proper when the avenue for appeal provided for in the Public Works Minimum Wage Act was inadequate considering that, over several years, several appeals taken from several department of workforce solutions regulatory actions failed to result in the setting of new rates in accordance with applicable collective bargaining agreements. N.M. Bldg. and Constr. Trades Council v. Dean, 2015-NMSC-023. Mandamus proper where discharged teacher made an untimely request for a discharge hearing. — Where petitioner filed a request for a discharge hearing, pursuant to 22-10A-27(B) NMSA 1978, two days after the five-day time limit had passed after receiving notice of the Santa Fe public schools' intent to discharge him from his teaching and coaching positions, mandamus was proper where respondent had a duty to hold a discharge hearing, where respondent had not been prejudiced by the late request for hearing, and where petitioner had no other adequate, speedy remedy at law. Nat'l Educ. Ass'n of N.M. v. Santa Fe Pub. Sch., 2016-NMCA-009. Declaratory judgment not intended as substitute for mandamus. — Declaratory judgment actions are not intended to provide a substitute for other available actions, such as mandamus. A mandamus will not be denied on the ground that the plaintiff did not bring a declaratory judgment action. City of Albuquerque v. Ryon, 1987-NMSC-121, 106 N.M. 600, 747 P.2d 246. Mandamus will not lie where adequate remedy by appeal, or writ of error exists. State ex rel. Sweeney v. Second Judicial Dist., 1912-NMSC-033, 17 N.M. 282, 127 P. 23. Mandamus was proper remedy to prohibit unconstitutional official action. — Where petitioners, a class of public officers affected by the election deferral provisions of HB 407, passed by the 2019 legislature, filed petitions for writs of mandamus challenging the constitutionality of HB 407 to the extent it postponed the times of election and extended the constitutionally mandated terms of certain public offices, prohibitory mandamus was an appropriate means of addressing the constitutional claims because the electoral timing and term of office provisions of HB 407 presented issues of public importance which implicated citizens' fundamental right to vote. State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002.Unconstitutional alteration to the terms of office. — Where petitioners, a class of public officers affected by the election deferral provisions of HB 407, passed by the 2019 legislature, filed petitions for writs of mandamus challenging the constitutionality of HB 407 to the extent it postponed the times of election and extended the constitutionally mandated terms of certain public offices, the New Mexico supreme court issued writs of mandamus prohibiting the implementation of the affected provisions because they impermissibly alter the constitutionally prescribed terms of office of the petitioning groups. State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002.Appeal must also be taken from administrative decisions. — Mandamus will not lie when the relator has failed to pursue a statutory right to appeal to district court from an administrative decision. Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195. Erroneous sentence must also be appealed. — Where defendant received erroneous sentence upon conviction of forgery, but failed to exercise right of appeal, mandamus would not lie to compel parole board to treat his sentence as if correct. State Bd. of Parole v. Lane, 1957-NMSC-067, 63 N.M. 105, 314 P.2d 602. Cannot compel signing bill of exception after appeal's return date. — Mandamus will not lie to compel a district judge to sign and settle a bill of exceptions not tendered until after the return day of appeal. State ex rel. Divelbiss v. Raynolds, 1913-NMSC-028, 17 N.M. 662, 132 P. 249. Liquor license applicant's remedy after division's final decision was appeal. — Where a letter from division of liquor control clearly shows that the application had been considered and in fact that the application cannot be processed because the quota of one license to each 2000 people has been more than filled in Rio Arriba county, there can be no doubt this amounted to a final decision on division's part to refuse the application. A decision is a determination arrived at after consideration, an opinion formed, or a course of action decided upon. The applicant's remedy upon being advised of the decision was by appeal to the district court of Santa Fe County as expressly provided by former Section 46-5-16, 1953 Comp. It follows that the district court erred in entering its judgment ordering the issuance of a peremptory writ of mandamus. Armijo v. Armijo, 1967-NMSC-102, 77 N.M. 742, 427 P.2d 258. Teacher's failure to follow statutory remedy negatived his right to proceed by mandamus. Sanchez v. Board of Educ., 1961-NMSC-081, 68 N.M. 440, 362 P.2d 979. Adequate law remedy exists to redress public lands commissioner's acts. — Section 19-7-67 NMSA 1978 provides an adequate remedy at law for anyone who is aggrieved by the action of the commissioner of public lands and therefore, mandamus does not lie to compel the duties alleged to be due. Andrews v. Walker, 1955-NMSC-072, 60 N.M. 69, 287 P.2d 423. Writ lies to enforce provisions of judgment in condemnation proceeding. — Rule that mandamus will not issue to enforce contract rights "because there is another adequate remedy in the ordinary course of law, in the form of an action for damages" was not applicable when property owner sought mandamus to enforce provisions of a judgment in a condemnation proceeding because money damages were not an adequate remedy in actions for specific performance of land sales contract; and "there can be no monetary substitute for the precise land bargained for." State ex rel. State Hwy. Comm'n v. Clark, 1968-NMSC-057, 79 N.M. 29, 439 P.2d 547. Administrative duties must be exhausted. — Mandamus does not lie when the relator has failed to exhaust an adequate administrative remedy provided by statute. Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195. Writ cannot lie where administrative remedies unexhausted and pleadings deficient. — Where the pleading was patently deficient and where there was a failure to exhaust administrative remedies, the trial court did not err in dismissing plaintiff's mandamus claim sua sponte and without appointment of counsel. Orrs v. Rodriguez, 1972-NMCA-148, 84 N.M. 355, 503 P.2d 335. III. SPEEDY.Writ lies where early constitutionality decision of importance. — Mandamus was a proper remedy by which the petitioner could attack the constitutionality of statute in view of the possible inadequacy of other remedies and the necessity of an early decision on question of great public importance. Thompson v. Legislative Audit Comm'n, 1968-NMSC-184, 79 N.M. 693, 448 P.2d 799. Mandamus will lie to determine proper place of trial, before trial, where great delay and expense would result from pursuing an appeal and where a change in venue was made without authority. State ex rel. Cardenas v. Swope, 1954-NMSC-028, 58 N.M. 296, 270 P.2d 708. Mandamus lies where combination of facets of litigation cause delay. — The ordinary delays attendant to a somewhat involved trial would not of itself justify mandamus nor would the fact that the petitioner does not have the benefit of a replevin bond although this is a circumstance which must be considered in connection with the delays of a trial and subsequent appeal. It is more the combination of all the various facets of the litigation which makes it apparent that to refuse the writ "would result in needless expense and delay" and therefore the ordinary remedy by appeal is inadequate here. Sender v. Montoya, 1963-NMSC-220, 73 N.M. 287, 387 P.2d 860. IV. BENEFICIALLY INTERESTED.Mandamus lies at request of person beneficially interested to compel the performance of an affirmative act by another where the duty to perform the act is clearly enjoined by law and where there is no other plain, speedy and adequate remedy in the ordinary course of law. El Dorado at Santa Fe, Inc. v. Board of County Comm'rs, 1976-NMSC-029, 89 N.M. 313, 551 P.2d 1360. Standing of private parties to obtain writ to vindicate public interest. — Even though a private party may not have standing to invoke the power of the supreme court to resolve constitutional questions and enforce constitutional compliance, the supreme court, in its discretion, may grant standing to private parties to obtain a writ of mandamus to vindicate the public interest in cases presenting issues of great public importance. State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, 86 N.M. 359, 524 P.2d 975; State ex rel. Johnson, 1995-NMSC-048, 120 N.M. 562, 904 P.2d 11. Where a city mayor initiated a mandamus action in the mayor's official and individual capacity to prohibit the enforcement of an allegedly unconstitutional statute that permitted local governments to regulate some aspects of the right to bear arms and during the pendency of the proceeding, the former mayor was succeeded by a new mayor who sought to dismiss the action, the Supreme Court conferred standing on the former mayor to maintain the mandamus action in the former mayor's individual capacity due to the importance of the issues involved. Baca v. N.M. Dep't of Public Safety, 2002-NMSC-017, 132 N.M. 282, 47 P.3d 441. City is "beneficially interested" in suit to compel its treasurer to deposit the money in his hands belonging to it in a bank designated by ordinance, from which it would receive interest. Territory ex rel. City of Albuquerque v. Matson, 1911-NMSC-016, 16 N.M. 135, 113 P. 816. Plaintiff not "beneficially interested". — Where plaintiffs, in an action attacking the legality of legislation authorizing Indian gaming in New Mexico (11-13-1 and 11-13-2 NMSA 1978), asserted only an abstract right owed to the people of the state as a whole, they were not "beneficially interested" parties under this section. State ex rel. Coll v. Johnson, 1999-NMSC-036, 128 N.M. 154, 990 P.2d 1277. Citizen may apply to enforce performance of public duty. — As a general rule, mandamus may issue to enforce the performance of a public duty by public officers not due to the government itself as such, upon application of any citizen whose rights are affected in common with those of the general public. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576, 249 P. 242. Taxpayer has no standing to enforce duty owed to public. — The University of New Mexico is a creature of the N.M. Const., art. XII, §§ 12, 13, augmented by Sections 21-7-1 to 21-7-3 NMSA 1978, and the respondents owe their duties to the state of New Mexico, not to a private person. This being so, it follows that relator, though a taxpayer, has no standing to enforce by mandamus a duty owing to the public. Womack v. Regents of Univ. of N.M., 1971-NMSC-043, 82 N.M. 460, 483 P.2d 934. State and not parents of victim interested in murder prosecution. — Discretion of appointed or elected public officials charged with criminal prosecution cannot be controlled by mandamus proceedings in murder prosecution since it is the state rather than parents of child who was killed which is the party beneficially interested in the prosecution. State ex rel. Naramore v. Hensley, 1949-NMSC-039, 53 N.M. 308, 207 P.2d 529. Law reviews. — For comment on Sender v. Montoya, 73 N.M. 287, 387 P.2d 860 (1963), see 4 Nat. Resources J. 413 (1964). For article, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970). For article, "Mandamus in New Mexico," see 4 N.M.L. Rev. 155 (1974). Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus §§ 46 to 58. Adequacy of remedy by indictment so as to bar mandamus to compel improvement or repair of highway or bridge, 46 A.L.R. 267. Existence of other remedy as affecting right to mandamus to compel return of tax illegally or erroneously exacted, 93 A.L.R. 589. Mandamus to compel payment of state, county, municipal or quasi-municipal corporation warrants as affected by remedy at law, 98 A.L.R. 449. 55 C.J.S. Mandamus § 17.