The penitentiary of New Mexico as herein established as a body politic and corporate, is hereby declared to be the same institution enumerated in Section 1 of Article XIV of the constitution of New Mexico, and the same institution which is one of the beneficiaries of the lands donated by the United States government to the state of New Mexico in trust for said institution, and as such body politic and corporate is hereby vested with the absolute legal right and title to all real estate, personal property and other assets and things of value heretofore held, used and operated by the board of commissioners of the penitentiary [corrections department] of New Mexico before incorporation, and all appropriations heretofore made, including the right to receive the benefits and proceeds of permanent and current funds pursuant to the Enabling Act.

History: Laws 1939, ch. 55, § 2; 1941 Comp., § 45-102; 1953 Comp., § 42-1-2.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Laws 1977, ch. 257, § 102, amending Laws 1969, ch. 226, § 9, provided that reference made under any statute, which was administered and enforced prior to July 1, 1969 by the penitentiary or its officers or employees, to any such officers, employees or agency, shall be construed to mean the corrections division. See 33-1-7 NMSA 1978. However, the functions formerly performed by the corrections division are now performed by various divisions of the corrections department. See compiler's note to 33-2-1 NMSA 1978.

Cross references. — For the penitentiary at Santa Fe being confirmed as a state institution, see N.M. Const., art. XIV, § 1.

For the Enabling Act, see the New Mexico Territorial Laws and Treaties on NMOneSource.com.

Title to section gave ample notice it concerned title to property. — The title to this section is broad enough to meet the test enunciated by this court in State v. Aragon, 1951-NMSC-052, 55 N.M. 423, 234 P.2d 358, and State v. Ingalls, 1913-NMSC-068, 18 N.M. 211, 135 P. 1177, and gave ample notice to those interested that it was concerned with "titles and rights" to penitentiary property. It could not have contributed to logrolling or fraud, and it was not necessary for the title of the act to set forth the source of the titles to the property which it directed be transferred to the penitentiary. State v. Thomson, 1969-NMSC-006, 79 N.M. 748, 449 P.2d 656.

If property transferred to penitentiary, then right to repurchase lost. — Sections 33-2-2 and 33-2-4 NMSA 1978 are applicable to penitentiary property; and if the property was, by the provisions of these sections, transferred to the penitentiary, then the right of repurchase created by Laws 1939, ch. 203 (since repealed) either never came into existence or was lost long prior to the quitclaim deed from grantor to grantee. State v. Thomson, 1969-NMSC-006, 79 N.M. 748, 449 P.2d 656.

Prison honor farm is integral part and parcel of state penitentiary, and escape therefrom is an escape from the state penitentiary. State v. Peters, 1961-NMSC-160, 69 N.M. 302, 366 P.2d 148, cert. denied, 369 U.S. 831, 82 S. Ct. 849, 7 L. Ed. 2d 796 (1962).

Public corporation's power to be sued does not authorize tort suit. — The power to sue and be sued as used in statutes conferring such power on public corporations did not mean the power of suing the public corporation, which in fact was a division of the state, in a tort action. Vigil v. Penitentiary of N.M., 1948-NMSC-032, 52 N.M. 224, 195 P.2d 1014.

Meaning of "held, used and operated" and "is hereby vested". — The words "held, used and operated" used in this section must have implied the legislative intention to mean something different than being restricted to "ownership." The very fact that the statute used the terminology "is hereby vested" in connection with the words "held, used and operated" must have intended to include property which the institution "had physical possession of" as such a meaning follows when all of the words of the statute are considered together. State v. Thomson, 1969-NMSC-006, 79 N.M. 748, 449 P.2d 656.

Meaning of "held" with respect to property with improvements. — The word "held" has no primary or technical meaning and its meaning is determined largely by the connection in which it is used. So viewed, it must follow that the statute vested in the penitentiary all the property that it was then holding, using and operating, and this naturally included the property upon which barns and other improvements had been constructed. State v. Thomson, 1969-NMSC-006, 79 N.M. 748, 449 P.2d 656.

Misnomer in reference to penitentiary affects no substantial rights. — Prisoners were denied habeas corpus where they were sentenced to the "New Mexico penitentiary" instead of "to the penitentiary of New Mexico" because the misnomer, if one existed, was a clerical error which did not affect any substantial right of the appellants. Carter v. New Mexico, 358 F.2d 710 (10th Cir.), cert. denied, 385 U.S. 873, 87 S. Ct. 146, 17 L. Ed. 2d 100 (1966).

Commissioners had authority to move penitentiary. — Under the broad powers of the statute (Section 42-1-1, 1953 Comp., since repealed; see now Section 42A-1-1) to sell real, personal or mixed property, the penitentiary commissioners (now corrections department) have the authority to move the penitentiary out of the county of Santa Fe if in their judgment they deem it necessary and proper for the operation and management of the penitentiary. 1953 Op. Att'y Gen. No. 53-5628.

Law reviews. — For comment, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970).