NM Stat § 44-2-7 (2021)
2021 New Mexico Statutes|Chapter 44 - Miscellaneous Civil Law Matters|Article 2 - Mandamus|Section 44-2-7 - [When peremptory or alternative writs issued.]

When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ shall be first issued. History: Laws 1884, ch. 1, § 41; C.L. 1884, § 1996; C.L. 1897, § 2764; Code 1915, § 3416; C.S. 1929, § 86-106; 1941 Comp., § 26-107; 1953 Comp., § 22-12-7. ANNOTATIONSThis section does not violate due process of law. Board of Comm'rs v. Dist. Court, 1924-NMSC-009, 29 N.M. 244, 223 P. 516. Peremptory writ of mandamus may issue without a hearing. Territory ex rel. Coler v. Board of County Comm'rs, 1907-NMSC-018, 14 N.M. 134, 89 P. 252, aff'd, 215 U.S. 296, 30 S. Ct. 111, 54 L. Ed. 202 (1909). Demand is not necessary before bringing suit by mandamus to compel county commissioners to levy tax to satisfy judgments on county bonds, where it is clear the board does not intend to perform its duty. Territory ex rel. Coler v. Board of County Comm'rs, 1907-NMSC-018, 14 N.M. 134, 89 P. 252, aff'd, 215 U.S. 296, 30 S. Ct. 111, 54 L. Ed. 202 (1909). Peremptory writ issues in first instance only where right clear. — A peremptory writ of mandamus may issue in the first instance only where the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it. Mora County Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943. Peremptory writ must contain all necessary facts that authorize relief. — Requirement that the writ contain allegations of all facts necessary to authorize the relief sought applies with great reason to peremptory writs of mandamus issued in ex parte proceedings. Mora County Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943. Writ must show that no valid excuse can be given. — Under this section, a peremptory writ of mandamus issued in an ex parte proceeding must contain allegations of all facts necessary to show that the right to require performance of the act sought is clear and that no valid excuse can be given for not performing it. Rivera v. Nunn, 1967-NMSC-159, 78 N.M. 208, 430 P.2d 102. Once final judgment reached official's refusal to act unjustified. — Where the final judgment condemned the property and awarded damages to the condemnees, any refusal to act by the officers named would not be justified, because they would have no discretion but to comply with the judgment. State ex rel. State Hwy. Comm'n v. Quesenberry, 1964-NMSC-043, 74 N.M. 30, 390 P.2d 273. Peremptory writ may be issued to compel board of canvassers to count the votes and to issue a writ of election. 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. Writ may compel election certificate be issued to relator. — Where it appears that a board of canvassers have failed to count votes which should have been counted, and where, if such votes were counted, the relator would be elected, the court may, by peremptory writ of mandamus, direct the board of canvassers to count such votes, and to issue to relator a certificate of election. 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. Issuance of peremptory writ of mandamus is not a final order for purposes of appeal when an issue of damages in connection with the activity covered by the writ has not been resolved. Village of Los Ranchos v. Sanchez, 2004-NMCA-128, 136 N.M. 528, 101 P.3d 339, cert. denied, 2004-NMCERT-011, 136 N.M. 656, 103 P.3d 580. Writ of prohibition issuing from state supreme court is final judgment within the meaning of 28 U.S.C. § 1257, and review of all proceedings concerning such should be sought in the United States supreme court. Gibner v. Oman, 459 F. Supp. 436 (D.N.M. 1977). Suggested action not sufficient predicate for compulsion by writ. — In a judicial decree a finding of fact not followed by a mandatory statement is of no effect. Thus the act sought to be enforced must be based upon the clear direction of the state to a local authority, and a bare finding of fact followed only by a recommendation of suggested action does not afford sufficient predicate for the compulsion of the act. Mora Cnty. Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943. Act recommended by superior authority not compelled by peremptory writ. — The performance of an act which is merely recommended by a superior authority is not of such character that it may be compelled by the issuance of peremptory writ of mandamus. Mora Cnty. Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943. Fact issues which go to basis of writ are defense. — In a mandamus proceeding brought by employees of a city to collect compensation due them, issues of fact as to whether petitioners were in fact city employees, whether they had performed services, and the amount of pay, if any, to which they were entitled, are all questions which could form the basis of a legal defense to the issuance of a writ of mandamus. Rivera v. Nunn, 1967-NMSC-159, 78 N.M. 208, 430 P.2d 102. District court, proceeding under this section, has jurisdiction to decide whether the case is one in which a peremptory writ is authorized or not. Board of Comm'rs v. Dist. Court, 1924-NMSC-009, 29 N.M. 244, 223 P. 516. Order making writ final neither final judgment nor interlocutory decision. — Mandamus, as issued in a condemnation case to enforce a money judgment against the highway commission, was neither a prerogative writ nor a new suit, and the order making the writ permanent was neither a final judgment nor an interlocutory judgment, order or decision within the meaning of rules governing appeals. State ex rel. State Hwy. Comm'n v. Quesenberry, 1963-NMSC-113, 72 N.M. 291, 383 P.2d 255. Law reviews. — 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). For note, "Mandamus Proceedings Against Public Officials: State of New Mexico ex rel. Bird v. Apodaca," see 9 N.M.L. Rev. 195 (1978-79). Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus § 476. Right to, and necessity of, amendment of alternative writ of mandamus to conform to peremptory writ, 100 A.L.R. 404. Provisional or alternative writ or order to show cause as condition of granting peremptory or absolute writ, 116 A.L.R. 659. 55 C.J.S. Mandamus § 344.