Opinion No. 73-05
January 18, 1973
TO: Martin E. Vigil, Chief New Mexico State Police P. O. Box 1628 Santa Fe, New Mexico 87501
QUESTIONS
QUESTIONS
Section 39-2-6(B), N.M.S.A., 1953 Comp. provides:
"Members of the New Mexico state police, including the chief, shall not be over sixty-one [61] years of age."
Does this mean that a member shall not have passed his 61st birthday, or that a member shall not have reached his 62nd birthday?
CONCLUSION
That a member shall not have reached his 62nd birthday.
OPINION
{*10} ANALYSIS
This question has not been extensively litigated in other states, but the conclusion generally reached in the reported cases is that set out above. In Wilson v. Mid-Continent Life Insurance Co. of Oklahoma City, 159 Okla. 191, 14 P.2d 945, the court held that the phrase "over the age of sixty-five years" was not applicable to a person who had not reached his sixty-sixth birthday since fractions of a year should not be counted. Accord: Cook v. National Fidelity & Casualty Co., 100 Neb. 641, 160 N.W. 957.
Again, in Watson v. Loyal Union Life Ass'n, 143 Okla. 4, 286 P. 888, the court said: "A person is not over 55 years of age . . . until he arrives at the age of 56." The court went on to say, "It may safely be said that it is universally so understood."
{*11} In an Arkansas case the question was the age limits within which firemen and policemen might enter the service of the respective departments. The court concluded that a person is not "over 31 years of age" until he reaches his 32nd birthday. Likewise, it held that a person is not "over the age of 45 years" until he reaches his 46th birthday. Allen v. Baird, 208 Ark. 975, 188 S.W.2d 505.
In view of the language used by our Legislature in Section 39-2-6B, supra, it is our opinion, based on the cited cases, that our courts would reach the same conclusion that these courts did.
By: Oliver E. Payne
Deputy Attorney General