It shall be the duty of the board of county commissioners of each county at each regular meeting thereof on the first day of each meeting to examine and inquire into the sufficiency of all the official bonds given or to be given by any county or precinct officer as required by law, and if it shall appear that any one or more of the securities on the official bond of any county officer has or have removed from the county, died, or become insolvent, or of doubtful solvency, the said board of county commissioners shall cause such county or precinct officer to be summoned to appear before the said board on a day to be named in said summons, to show cause why he should not be required to give a new bond with sufficient security, and if at the appointed time he shall fail to satisfy said board as to the sufficiency of the present security, an order shall be entered of record by said board requiring such county or precinct officer, to file in the office of the county clerk within twenty days, a new bond to be approved as required by law, unless the number and pecuniary ability of other securities on said bond shall be such as to satisfy the board that the bond is sufficient, notwithstanding one or more of the securities on said bond may have removed, be dead, insolvent or of doubtful solvency, in which case the bond in question may be, in the discretion of the board, held sufficient. In the event any such bond is found insufficient, and a new bond is not filed as ordered, the fact shall be certified by the board of county commissioners to the district court of the county, and shall also be certified to the district attorney of the judicial district wherein such county is located; and it shall thereupon become the duty of the district attorney to cause a hearing to be had in said district court for the purpose of adjudicating and declaring a vacancy in such office, in the event the district court determines, after a hearing, that the bond is in fact insufficient, and such officer fails within five days after the district court has so found to file a new bond with sufficient surety as required by law. Upon the entry of such decree of vacancy it shall thereupon become the duty of the appointing power to fill such office in the manner provided by law.
History: Laws 1876, ch. 1, § 37; C.L. 1884, § 368; C.L. 1897, § 687; Code 1915, § 1213; C.S. 1929, § 33-4227; Laws 1939, ch. 57, § 1; 1941 Comp., § 10-212; 1953 Comp., § 5-2-12.
ANNOTATIONSCross references. — For county officers, oath, bond, see 10-1-13 NMSA 1978.
Compiler's notes. — A similar provision relating only to constables, compiled in Comp. Laws 1865, ch. 40, § 2, deriving from the Kearny Code, Constables, § 3, appears to have been superseded by this section. Carried forward in Comp. Laws 1884, § 449; Comp. Laws 1897, § 802; Code 1915, § 3166; and Comp. Stat. 1929, § 79-112, modified by the 1915 compilers and carried in Code 1915 and Comp. Stat. 1929, it read: "Whenever the county commissioners shall be satisfied that the bond of any constable is likely to prove insufficient, by reason of the death or failure of the sureties to his bond, or any of them, they shall require such constable to give a new bond."
Bonding of deputy treasurer. — No statute requires that deputy county treasurers be bonded, and while it is good business for bonding companies which are sureties on county treasurers' bonds, as well as for county treasurers, to require that deputy treasurers be bonded, the county should not pay for the premiums on such deputies' bonds, since the state and county are protected on the treasurers' bonds for any defalcation, even by deputies, under Section 6-10-38 NMSA 1978. 1940 Op. Att'y Gen. No. 40-3417.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 487 to 504.
Liability on bond of sheriff for negligence causing damages to property, 53 A.L.R. 41.
Liability on bond of sheriff for unlawful search, 62 A.L.R. 855.
Right of sureties to take advantage of noncompliance with statutory requirements as to approval of bond, 77 A.L.R. 1479.
Liability of sureties on bond of public officer for acts or defaults occurring after termination of office, 81 A.L.R. 10.
Liability on recording officer's bond for mistakes or defects in respect to records affecting title, 94 A.L.R. 1303.
Liability on bond of sheriff for failure to file return of his proceedings after seizing property under writ or process, 98 A.L.R. 692.
Liability of sureties on bond of public officer to property owners for failure to present or delay in presenting checks given in payment of taxes, 105 A.L.R. 711.
Provision of bond at variance with statutory conditions, 109 A.L.R. 501.
Liability on bond of public officer for loss of public funds due to insolvency of bank in which they were deposited, 155 A.L.R. 436.
False return of execution or attachment, what amounts to, imposing liability on sheriff's or constable's bond, 157 A.L.R. 194.
Public officer's bond as subject to forfeiture for malfeasance in office, 4 A.L.R.2d 1348.
Liability of police or other peace officer on his bond for defamation, 13 A.L.R.2d 897.
Liability on bond of sheriff for personal injury or death, 60 A.L.R.2d 873.
Liability of notary public or his bond for negligence in performance of duties, 44 A.L.R.3d 555.
20 C.J.S. Counties § 100.