{ "id": 1655449, "name": "Warren LOOPER, Jr. v. Melvin THRASH", "name_abbreviation": "Looper v. Thrash", "decision_date": "1998-07-16", "docket_number": "98-260", "first_page": "212", "last_page": "222", "citations": [ { "type": "official", "cite": "334 Ark. 212" }, { "type": "parallel", "cite": "972 S.W.2d 250" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "222 Ark. 962", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652842 ], "weight": 3, "year": 1954, "pin_cites": [ { "page": "964-65" } ], "opinion_index": 0, "case_paths": [ "/ark/222/0962-01" ] }, { "cite": "252 S.W. 597", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "159 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722762 ], "opinion_index": 0, "case_paths": [ "/ark/159/0438-01" ] }, { "cite": "529 S.W.2d 647", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1621200, 1621137 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ark/258/0865-01", "/ark/258/0871-01" ] }, { "cite": "258 Ark. 871", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621137 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "876" } ], "opinion_index": 0, "case_paths": [ "/ark/258/0871-01" ] }, { "cite": "255 Ark. 978", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725918 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "984", "parenthetical": "stating \"fraud or bad faith\" need not be shown in illegal-exaction cases; \"A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent.\"" }, { "page": "732", "parenthetical": "stating \"fraud or bad faith\" need not be shown in illegal-exaction cases; \"A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/255/0978-01" ] }, { "cite": "261 Ark. 708", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678923 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "709" }, { "page": "203" }, { "page": "710" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ark/261/0708-01" ] }, { "cite": "237 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737977 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "331" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ark/237/0325-01" ] }, { "cite": "219 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609191 ], "weight": 8, "year": 1951, "pin_cites": [ { "page": "587" }, { "page": "748" }, { "page": "589" }, { "page": "749" }, { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ark/219/0586-01" ] }, { "cite": "217 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717500 ], "weight": 4, "year": 1950, "pin_cites": [ { "parenthetical": "\"Revis I\"" }, { "parenthetical": "\"Revis I\"" }, { "page": "29" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ark/217/0025-01" ] }, { "cite": "55 S.W. 856", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1900, "opinion_index": 0 }, { "cite": "67 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152571 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ark/67/0484-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-118-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "213 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467040 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/ark/213/0816-01" ] }, { "cite": "226 S.W.2d 544", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1614155 ], "weight": 4, "year": 1950, "pin_cites": [ { "page": "545" }, { "page": "545" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ark/216/0574-01" ] }, { "cite": "216 Ark. 575", "category": "reporters:state", "reporter": "Ark.", "weight": 3, "year": 1950, "pin_cites": [ { "page": "576" }, { "page": "577" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 12-61-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 12-61-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "opinion_index": 0 }, { "cite": "32 U.S.C. \u00a7 101", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(3)" }, { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 12-60-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1995, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "32 U.S.C. \u00a7 324", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "495 F.Supp. 1285", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4162345 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f-supp/495/1285-01" ] }, { "cite": "920 F.Supp. 1510", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7814239 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/f-supp/920/1510-01" ] }, { "cite": "228 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720727 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/ark/228/0401-01" ] }, { "cite": "292 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871297 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)" }, { "parenthetical": "citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)" } ], "opinion_index": 1, "case_paths": [ "/ark/292/0079-01" ] }, { "cite": "222 Ark. 962", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652842 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/ark/222/0962-01" ] }, { "cite": "219 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609191 ], "weight": 2, "year": 1951, "opinion_index": 1, "case_paths": [ "/ark/219/0586-01" ] } ], "analysis": { "cardinality": 890, "char_count": 19010, "ocr_confidence": 0.753, "pagerank": { "raw": 7.052393210097117e-08, "percentile": 0.4251616600041161 }, "sha256": "7b50a318e25bac4066c0616dd895919472e3b1684d104ef10836d3a2767f4147", "simhash": "1:933450e585aae3fb", "word_count": 3230 }, "last_updated": "2023-07-14T20:44:18.632081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Imber, JJ., dissent.", "Glaze, J., joins this dissent." ], "parties": [ "Warren LOOPER, Jr. v. Melvin THRASH" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is an illegal-exaction case. Melvin Thrash, the appellee, served as Adjutant General of the State of Arkansas from September 21, 1993, to December 14, 1996. Warren Looper, Jr., the appellant, filed a complaint against Mr. Thrash on February 27, 1997. Fie alleged that, because Mr. Thrash lost his \u201cfederal recognition\u201d upon reaching age 64 on May 1, 1996, Mr. Thrash\u2019s acceptance of salary from May to December, as well as his use of a residence at Camp Robinson, known as the \u201cPike House,\u201d at a reduced rental rate during that period, constituted an illegal exaction. Mr. Looper sought to have Mr. Thrash return to the State the salary received from May to December of 1996 and the \u201creasonable rental value of the Pike House less amounts actually paid thereon.\u201d He further sought an order divesting Mr. Thrash \u201cof all benefits and perquisites of his illegal office holding, including but not limited to retirement benefits or credits.\u201d The Chancellor granted summary judgment to Mr. Thrash. We affirm.\nWe have not previously dealt with issues arising from the duality of responsibilities for the National Guard, but we have learned from our study of the state and federal statutes discussed below, as well as from cases decided in other states, that a state\u2019s militia is governed by state law unless it becomes \u201cfederalized.\u201d While a state\u2019s militia remains under a state\u2019s aegis, under the control of state officials, its equipment may be furnished by the federal government, and the states strive to achieve federal recognition for their militia units, and their personnel, so that they may be prepared for state or federal service. Perhaps the best explanations of the division of responsibilities between state and federal authorities appear in Holmes v. California Army Nat\u2019l Guard, 920 F.Supp. 1510 (N.D. Cal. 1996), and Taylor v. Jones, 495 F.Supp. 1285 (E.D. Ark. 1980).\nThe argument presented by Mr. Looper is based on Arkansas Code Ann. \u00a7 12-61-201 (Repl. 1995), which provides:\n(a) The organized militia shall be commanded by a general officer who shall be federally recognized or qualified for federal recognition in a rank not higher than major general.\n(b) He shall be responsible for the military efficiency of the Arkansas organized militia.\nMr. Thrash does not contest the allegation that he lost his federal recognition on May 1, 1996. That was due to 32 U.S.C. \u00a7 324(a) (1994), which provides:\nAn officer of the National Guard shall be discharged when\u2014\n(1) he becomes 64 years of age; or\n(2) his Federal recognition is withdrawn.\nThe official who would be authorized to appoint him shall give him a discharge certificate.\nApparently on the questionable assumption that the \u201corganized militia\u201d is \u201ccommanded\u201d by the Adjutant General, Mr. Looper seized upon \u00a7 12-61-201 for his argument that Mr. Thrash illegally occupied the office of Adjutant General from May 1 until December 14, 1996. We need not decide in this case whether that is so.\nWe find nothing in the United States Code that requires that a state\u2019s adjutant general be federally recognized to serve in that position. The pertinent (federal) National Guard Regulation, AR 600-100, \u00a7 11-3(1), provides, \u201cA State Adjutant General may be appointed and serve in that capacity without Federal Recognition.\u201d That, however, does not end the inquiry on Mr. Looper\u2019s argument. Arkansas law must be examined further to determine whether Mr. Thrash\u2019s loss of federal recognition made him ineligible to hold the position and, if so, whether his receipt of remuneration as he continued to serve in the position without being replaced by the appointing authority amounted to an illegal exaction.\nArkansas Const. art. 11, \u00a7 1, entitled, \u201cMilitia,\u201d provides:\nThe militia shall consist of all able-bodied male persons, residents of the State, between the ages of eighteen and forty-five years, except such as may be exempted by the laws of the United States or this State, and shall be organized, officered, armed and equipped and trained in such manner as may be provided by law.\nLaws enacted pursuant to art. 11, \u00a7 1, are found in Act 50 of 1969 which, in \u00a7 46(a), codified as Ark. Code Ann. \u00a7 12-60-102(1) (Repl. 1995), provides that the \u201corganized militia\u201d is \u201cthe National Guard of the state as defined in 32 U.S.C. \u00a7 101(3).\u201d That federal-statute subsection contains only the following definition: \u201c (3) \u2018National Guard\u2019 means the Army National Guard and the Air National Guard.\u201d 32 U.S.C. \u00a7 101(3) (1994).\n\u201cThe Governor, by virtue of his office, shall be Commander-in-Chief of the militia, except the parts thereof as are ordered into the service of the United States.\u201d Ark. Code Ann. \u00a7 12-61-102 (Repl. 1995).\nArkansas Code Ann. \u00a7 12-61-105(a) (Repl. 1995) provides that \u201c[t]here shall be an Adjutant General of the state who shall be appointed by the Governor and shall be a commissioned officer in the Adjutant General\u2019s department of the National Guard of this state and shall have rank not higher than major general.\u201d The qualifications are further spelled out in \u00a7 12-61-105(b). Section 12-61-105 states nothing with respect to federal recognition.\nWe cannot, however, ignore a statute that has not been cited in this appeal, i.e., Ark. Code Ann. \u00a7 12-61-202 (Supp. 1996). It provides:\nThe land force of the organized militia shall be the Army National Guard as contemplated under the laws of the United States and shall comprise the army units which are a part of the Arkansas National Guard on February 12, 1969, and such other army units as may be allocated, accepted, and organized thereafter, including the personnel who are enlisted, appointed, or commissioned therein, provided that all persons who are members of the Army National Guard shall be federally recognized as such. [Emphasis supplied.]\nIt is thus apparent that, upon the loss of his federal recognition, Mr. Thrash lost his eligibility for membership in the Arkansas National Guard. He was not replaced, however, and continued to act in the position until his resignation on December 14, 1996. As there is no federal law on point, we must examine the Arkansas law applicable to an official who, although qualified upon appointment, loses his qualification but becomes a defacto or \u201chold-over\u201d appointee.\nIn Sitton v. Burnett, 216 Ark. 575, 226 S.W.2d 544 (1950), the Clinton City Council employed Mr. Sitton as marshal even though Mr. Sitton was not a resident or \u201cqualified elector\u201d of that city and was thus ineligible to serve as marshal pursuant to a constitutional provision, a statute, and case law. We affirmed the judgment in favor of the taxpayer who sued to recover the salary paid.\nWe acknowledged that Mr. Sitton had in essence been a de facto officer of the city. We pointed out, however, that, in a prior phase of the case, Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948), we had said that a defacto officer \u201cis not entitled to the salary provided for the services of city marshal.\u201d Sitton v. Burnett, 216 Ark. at 576, 226 S.W.2d at 545.\nWe then noted Mr. Sitton\u2019s argument that, \u201csince he was concededly a defacto officer, had performed the duties of the office of marshal in good faith, and there was no adverse claimant, or de jure officer claiming the salary, he, appellant, was entitled to said salary and could not be required to make refund.\u201d Sitton v. Burnett, 216 Ark. at 577, 226 S.W.2d at 545. We rejected the argument. We said the argument would have been correct but for the statute addressing \u201cusurpation of office,\u201d now codified at Ark. Code Ann. \u00a7 16-118-105 (1987). We said that a defacto officer qualifies as a \u201cusurper\u201d and that, if there is no person \u201centitled to the office\u201d to bring suit, the \u201cfees and emoluments\u201d may be recovered \u201cby the State\u201d \u2014 apparently through a taxpayer-initiated suit \u2014 and \u201cpaid into the public treasury.\u201d Id. In that situation, the fees collected by the usurper \u201care not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance.\u201d Id. at 578, 226 S.W.2d at 546 (quoting Stephens v. Campbell, 67 Ark. 484, 55 S.W. 856 (1900)). The Sitton case might be controlling here if Mr. Thrash had \u201cusurped\u201d the office of Adjutant General at the outset of his appointment, but that did not happen. Again, no one questions Mr. Thrash\u2019s qualifications to serve at the time he was appointed.\nRevis v. Harris, 217 Ark. 25, 228 S.W.2d 624 (1950) (\u201cRevis I\u201d), and Revis II, 219 Ark. 586, 243 S.W.2d 747 (1951), involved the claim of a taxpayer that Sam Harris, while serving as mayor of Clarksville, illegally held the post of municipal judge and also illegally obtained contracts for himself with the city-owned light and water system. The taxpayer sought, among other things, to recover for the State the money received by Mayor Harris (1) for his work as judge, and (2) on the contracts he made with the city utilities. The case was dismissed, and we reversed in Revis I and said that\nif appellant\u2019s allegations in his complaint to the effect that appellee [the mayor] had been paid sums of money illegally by the City of Clarksville while acting as Municipal Judge, and for other services, without right or authority of law, were true, appellant stated a cause of action and was a proper party to initiate the suit. Revis I 217 Ark. at 29, 228 S.W.2d at 626.\nOn remand, the Mayor argued that his receipt of money for his work as judge, and for the services \u201cas a laborer for the water and light department,\u201d was not illegal. We said that he had effectively made a plea of quantum meruit. Revis II, 219 Ark. at 587, 243 S.W.2d at 748. The Chancellor enjoined the Mayor from accepting employment \u201coutside of his duties as mayor\u201d but dismissed that part of the complaint requesting the Mayor to repay the salary he had received for working as a judge and as a utility \u201claborer.\u201d The Chancellor agreed that it had been \u201cillegal,\u201d in light of Ark. Stat. Ann. \u00a7 19-909, for the mayor to do this work but reasoned that it would be \u201cunjust and inequitable\u201d to require repayment where the Mayor had rendered those extra services \u201cwhile acting in good faith.\u201d Id. at 589, 243 S.W.2d at 749.\nWe reversed in part and affirmed in part. Citing Sitton v. Burnett, supra, we required the Mayor to repay the salary he had earned for his work as municipal judge and observed that the mayor had not been a de jure judge in light of the statute prohibiting dual office-holding. Thus, we reversed on that point.\nWe affirmed on the question whether the mayor should repay the salary earned through his work on the contracts he made with the city utilities. On that issue, we conceded it had been illegal for the mayor to do that work but agreed with the argument that \u201cthe payee may retain the quantum meruit value received for services rendered even when there is a violation of the said section.\u201d Id. at 590, 243 S.W.2d at 750. We said that the statute rendering that labor \u201cillegal\u201d did not make the contract \u201cnull and void,\u201d and we further suggested that the contract had been performed in \u201cgood faith.\u201d Id.\nWe did, however, require repayment of the money received for service as municipal judge and wrote in Revis II that the Sitton decision required return of the funds received illegally by Mr. Harris \u201cas an officer.\u201d Again, it was illegal for Mr. Harris to enter upon the office of municipal judge while he was mayor. Revis II was not a case in which the officer was qualified upon entry but lost his qualification later.\nIn Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963), we rejected the plaintiffs claim that dual office-holders were required to repay the salary they had received through the improper \u201csecond\u201d office. We noted that there was \u201cnothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.\u201d Id. at 331, 372 S.W.2d at 588.\nWe expressed a similar view in Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977). There, a legislator held the office of deputy prosecuting attorney in violation of a constitutional provision that prohibits a member of the General Assembly from holding another state office. The legislator argued that \u201che had in good faith performed the duties\u201d of deputy prosecutor and won summary judgment. Id. at 709, 551 S.W.2d at 203. We affirmed, quoting the Starnes opinion, and said that the State could not receive a \u201cwindfall\u201d in light of the deputy prosecutor\u2019s \u201cgood faith performance.\u201d Id. at 710, 551 S.W.2d at 203. But see Mackey v. McDonald, 255 Ark. 978, 984, 504 S.W.2d 726, 732 (1974)(stating \u201cfraud or bad faith\u201d need not be shown in illegal-exaction cases; \u201cA good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent.\u201d).\nWhile our cases thus suggest that one who enters upon an office \u201cillegally\u201d may be liable to an illegal-exaction claim, we have no case dealing with an illegal-exaction claim against an officer who, although qualified at the time of appointment, as in this case, continues to serve after losing his qualification. Cases decided in other contexts are, however, helpful.\nIn May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975), an alderman was convicted of a crime and was replaced. The conviction was reversed, and upon remand, the charge was dismissed. The alderman sued his replacement and claimed that his office had been usurped. The issue on appeal was whether the complaint stated a cause of action. We held that it did and wrote:\nWe have said that an office does not ipso facto become vacant when a condition of ineligibility of the incumbent arises after he takes office, if he was eligible when he took office, and the subsequent ineligibility merely affords grounds for removal. Stafford v. Cook, 159 Ark. 438, 252 S.W. 597 [1923].\nMay v. Edwards, 258 Ark. at 876, 529 S.W.2d at 651.\nThat decision was consistent with our earlier holding in City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954). In that instance, Mr. Binam, the Berryville City Marshall, did not seek reelection to the position, and the person elected to succeed him failed to qualify. Mr. Binam continued in the office as a \u201chold-over.\u201d The Berryville City Council had purported to reduce the city marshall salary from $100 to $1 per month. Mr. Binam was paid the monthly $1 during the time he held over in the position. He sued the City for the $100 monthly salary allegedly owed to him during the hold-over period. A statute, Ark. Stat. Ann. \u00a7 19-1103, specifically provided that a city marshall \u201cshall continue in office until his successor is elected and qualified.\u201d We held that he was entitled to the $100 per month. We did not limit our discussion of the law to the statute but said the following:\nAn officer who holds over and continues to perform the duties of his office after expiration of his term is entitled to compensation up to the time he ceases to discharge his duties. 62 C.J.S., Municipal Corporations, \u00a7 529; McQuillin, Municipal Corporations (3rd Ed.) \u00a7 12.202. The period of holding over in such cases is as much a part of the officer\u2019s term of office as the regular period fixed by law. 67 C.J.S., Officers, \u00a7 48c; McQuillin, Municipal Corporations, (3rd Ed.) \u00a7 12.110.\n222 Ark. at 964-65, 264 S.W. at 423. Although it may quite properly be said that our remarks beyond the citation of the statute were obiter dicta, we read them as an expression of the common law on the matter of persons who enter upon public office when qualified to do so but who lose their qualification and continue in the office with the acquiescence of the appointing authority until resignation or replacement.\nThere being no state or federal law to the contrary, and in view of our expressions in the May and Binam cases, we hold that Mr. Thrash did not occupy the office of Adjutant General illegally between May 1 and December 14, 1996. Thus, there was no illegal exaction.\nAffirmed.\nGlaze and Imber, JJ., dissent.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Annabelle Clinton Imber, Justice,\ndissenting. This is an illegal-exaction case brought pursuant to Article 16, Section 13, of the Arkansas Constitution. It is not an ouster or usurpation case. As such, I do not understand the majority\u2019s reliance on cases such as City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954), which involve whether a vacancy was created in an office.\nIf the majority is suggesting that a vacancy must be created in an office before salary paid to that officer may be recovered in an illegal-exaction claim, that is not a requirement that I can find expressed in our illegal-exaction cases. \u201cThis court has held that one who holds a public office illegally may be required to pay back money received as salary.\u201d Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)). For example, in Revis, supra, we recognized a viable illegal-exaction claim that was based on dual office holding, while in Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957), salary paid to a deputy sheriff was recoverable given that the salary was authorized by unconstitutional local legislation. Neither case couches its illegal-exaction holding in terms of vacancy or usurpation. Binam, and similar cases, are simply not on point.\nIn any event, the proposition in Binam that an officer who holds over and continues to perform the duties of his office after expiration of his term is entitled to compensation up to the time he ceases to discharge his duties, is mere obiter dictum because a statutory provision providing for holdover was present in Binam. And, this common-law holdover proposition is exclusively in the context of municipal-office holders. Notably, there is no statutory provision in the present case providing for any holdover.\nHere, Melvin Thrash was obviously ineligible to continue serving as Adjutant General once he was discharged pursuant to federal law. My view is simple. It logically follows that Thrash held the office \u201cillegally\u201d once he was ineligible to serve in that office. To the extent that the trial court granted summary judgment to Thrash because no vacancy was created in the office, or because Thrash was a \u201cdefacto officer,\u201d I would hold that it erred. For purposes of this appeal, I would further proceed to the issue of Thrash\u2019s good-faith defense, and whether such a defense is even available under these circumstances. For the forgoing reasons, I respectfully dissent.\nGlaze, J., joins this dissent.", "type": "dissent", "author": "Annabelle Clinton Imber, Justice," } ], "attorneys": [ "Oscar Stilley, for appellant.", "Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellee." ], "corrections": "", "head_matter": "Warren LOOPER, Jr. v. Melvin THRASH\n98-260\n972 S.W.2d 250\nSupreme Court of Arkansas\nOpinion delivered July 16, 1998\nOscar Stilley, for appellant.\nFriday, Eldredge & Clark, by: R. Christopher Lawson, for appellee." }, "file_name": "0212-01", "first_page_order": 238, "last_page_order": 248 }