¶1dissenting. 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’s 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.
¶2If 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. “This court has held that one who holds a public office illegally may be required to pay back money received as salary.” 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.
¶3In 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.
¶4Here, 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 “illegally” 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 “defacto officer,” I would hold that it erred. For purposes of this appeal, I would further proceed to the issue of Thrash’s good-faith defense, and whether such a defense is even available under these circumstances. For the forgoing reasons, I respectfully dissent.