2023 New Mexico Statutes › Chapter 4 - Counties › Article 33 - Creation or Change of Counties › Section 4-33-3 - Contest; notice of election.

Immediately upon the filing of a petition under Section 4-33-2 NMSA 1978, it shall be the duty of the board of county commissioners with which the petition is filed to cause a notice to be published in some newspaper of general circulation in each county affected. Within thirty days after the publication of the notice, but not thereafter, any resident of either of the counties affected, on behalf of the resident and all others similarly situated, may bring an action in the district court of the county in which the area proposed to be annexed is located, against any one or more of the signers of the petition, alleging that the petition has not been executed by the requisite number of signers or that the area to be annexed is not accurately described or that the conditions described in Section 4-33-1 NMSA 1978 do not exist. The judge, after hearing, shall make a determination as to whether the allegations of the petition are well taken. If the judge shall determine that the allegations of the petition are well taken, the judge shall enter an order. If the order is not stayed, it shall be the duty of the board of county commissioners to call an election to be held within ninety days within the county of the area proposed to be annexed; provided that the date is not in conflict with the provisions of Section 1-24-1 NMSA 1978. The county clerk shall cause a notice of election to be published two times in a newspaper of general circulation in the county, the last publication thereof to be at least seven days before the date of the election. The notice shall specify whether the proposed annexation shall appear as a ballot question in a statewide election or specify the date a special election will be held as prescribed in the Election Code [Chapter 1, NMSA 1978]. At the election, all qualified electors who reside within the county shall be entitled to vote.
History:
1941 Comp., § 15-3307, enacted by Laws 1947, ch. 196, § 3; 1951, ch. 148, § 1; 1953 Comp., § 15-33-3; 2019, ch. 212, § 188.
ANNOTATIONS
The 2019 amendment,
effective April 3, 2019, revised the notice procedures regarding an election held for the purpose of determining whether a portion of a county should be annexed, and made technical amendments; after "Immediately upon the filing of a petition", added "under Section 4-33-2 NMSA 1978", after "conditions described in Section", deleted "1 hereof" and added "4-33-1 NMSA 1978", after "election to be held within", deleted "30" and added "ninety", after "proposed to be annexed", deleted "and" and added "provided that the date is not in conflict with the provisions of Section 1-24-1 NMSA 1978. The county clerk", after "The notice shall specify", deleted "the polling places, which polling places shall be not fewer than there were in said county at the last general election" and added "whether the proposed annexation shall appear as a ballot question in a statewide election or specify the date a special election will be held as prescribed in the Election Code", and after "entitled to vote", deleted the remainder of the section, which related to a prior version of law.
Notice that the board is required to publish is a notice of the filing with it of the petition
mentioned in this section, citing it and its general purpose and object. It should describe the portion of the county proposed to be detached from the named county and attached to the other, and announce that any resident of either county affected within 30 days after publication, but not thereafter, may bring the action mentioned in this section, in the district court of the county in which the affected area lies, challenging, on grounds named in this section, the right to the annexation sought.
Youree v. Ellis
, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
Hearing and determination as to correctness of petition.
— If a contest is filed, the hearing provided for takes place as provided in this section. The judge of the district court of the county in which the proceedings are initiated must, at the hearing, determine whether the allegations of the petition are true.
Youree v. Ellis
, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
If no contest is filed, then the proponents of the proposed annexation, upon calling the matter, by some appropriate pleading, to the attention of the district court of the county where the annexation proceedings are pending, may initiate the hearing contemplated by this section. Upon such hearing, even though the relief sought is unopposed, the court must determine whether there are jurisdictional grounds for the annexation as its authority to proceed further.
Youree v. Ellis
, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
The board of county commissioners had no duty to publish notice of an invalid annexation petition.
— Where petitioners filed a petition to annex the Santa Fe county portion of Espa ola, which lies within the boundaries of both Santa Fe county and Rio Arriba county, to Rio Arriba county because petitioners wanted to access the county services available at the Rio Arriba county offices in Espa ola, the district court erred in finding that the petition complied with § 4-33-1 NMSA 1978 and in issuing a writ of mandamus ordering the board of county commissioners of Santa Fe county to publish notice pursuant to this section. A plain language reading of 4-33-1 NMSA 1978 requires that an annexation petition state facts showing that it will be more convenient for the residents of Espa ola currently residing in Santa Fe county to travel to Tierra Amarilla, the county seat, and neither the petition nor its attachments made any reference to Tierra Amarilla and thus failed to comply with the statutory requirement that a petition set forth facts to establish the county seat condition.
Bd. of
Comm'rs of Rio Arriba Cnty. v. Bd. of Comm'rs of Santa Fe Cnty
., 2020-NMCA-017.
Procedure where second petition filed.
— Where trial court has held on substantial evidence that a second petition seeking annexation is not an amendment of the first but an entirely new, independent and distinct petition, any defects in the first petition may be laid aside in determining the sufficiency of the second petition.
Youree v. Ellis
, 1954-NMSC-002, 58 N.M. 30, 265 P.2d 354.
Right to contest annexation election.
— Annexation is a special statutory proceeding and the right of contest and the jurisdiction to entertain it must be found in the Act itself. No such right is provided by the Act.
Hartley v. Board of Cnty. Comm'rs
, 1957-NMSC-028, 62 N.M. 281, 308 P.2d 994.
Sufficiency of findings of trial court.
— Trial court findings, although phrased in disjunctive, were sufficiently clear to express intention to find the negative of each of the conditions relied on to support annexation.
Stone v. Crenshaw
, 1952-NMSC-093, 56 N.M. 707, 248 P.2d 822.