Looper v. Thrash, 98-260

• Decision Date: 16 July 1998
• Docket Number: No. 98-260,98-260
• Citation: 972 S.W.2d 250,334 Ark. 212
• Parties: Warren LOOPER, Jr., Appellant, v. Melvin THRASH, Appellee.
• Court: Arkansas Supreme Court

Page 250

972 S.W.2d 250

334 Ark. 212

Warren LOOPER, Jr., Appellant, v. Melvin THRASH, Appellee.

No. 98-260.

Supreme Court of Arkansas.

July 16, 1998.

Oscar Stilley, Fort Smith, for Appellant.

R. Christopher Lawson, Little Rock, for Appellee.

NEWBERN, Justice.

This 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. He alleged that, because Mr. Thrash lost his "federal recognition" upon reaching age 64 on May 1, 1996, Mr. Thrash's acceptance of salary from May to December, as well as his use of a residence at Camp Robinson, known as the "Pike House," 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 "reasonable rental value of the Pike House less amounts actually paid thereon." He further sought an order divesting Mr. Thrash "of all benefits and perquisites of his illegal office holding, including but not limited to retirement benefits or credits." The Chancellor granted summary judgment to Mr. Thrash. We affirm.

We 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's militia is governed by state law unless it becomes "federalized." While a state's militia remains under a state's 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'l Guard, 920 F.Supp. 1510 (N.D.Cal.1996), and Taylor v. Jones, 495 F.Supp. 1285 (E.D.Ark.1980).

The argument presented by Mr. Looper is based on Arkansas Code Ann. § 12-61-201 (Repl.1995), which provides:

(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.

(b) He shall be responsible for the military efficiency of the Arkansas organized militia.

Mr. Thrash does not contest the allegation that he lost his federal recognition on May 1, 1996. That was due to 32 U.S.C. § 324(a)(1994), which provides:

An officer of the National Guard shall be discharged when-

(1) he becomes 64 years of age; or

(2) his Federal recognition is withdrawn.

The official who would be authorized to appoint him shall give him a discharge certificate.

Apparently on the questionable assumption that the "organized militia" is "commanded" by the Adjutant General, Mr. Looper seized upon § 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.

We find nothing in the United States Code that requires that a state's adjutant general be federally recognized to serve in that position. The pertinent (federal) National Guard Regulation, AR 600-100, § 11-3(1), provides, "A State Adjutant General may be appointed and serve in that capacity without Federal Recognition." That, however, does not end the inquiry on Mr. Looper's argument. Arkansas law must be examined further to determine whether Mr. Thrash's 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.

Arkansas Const. art. 11, § 1, entitled, "Militia," provides:

The 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.

Laws enacted pursuant to art. 11, § 1, are found in Act 50 of 1969 which, in § 46(a), codified as Ark.Code Ann. § 12-60-102(1) (Repl.1995), provides that the "organized militia" is "the National Guard of the state as defined in 32 U.S.C. § 101(3)." That federal-statute subsection contains only the following definition: "(3) 'National Guard' means the Army National Guard and the Air National Guard." 32 U.S.C. § 101(3)(1994).

"The 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." Ark.Code Ann. § 12-61-102 (Repl.1995).

Arkansas Code Ann. § 12-61-105(a)(Repl.1995) provides that "[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's department of the National Guard of this state and shall have rank not higher than major general." The qualifications are further spelled out in § 12-61-105(b). Section 12-61-105 states nothing with respect to federal recognition.

We cannot, however, ignore a statute that has not been cited in this appeal, i.e., Ark.Code Ann. § 12-61-202 (Supp.1996). It provides:

The 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.]

It 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 de facto or "hold-over" appointee.

In Sitton v. Burnett, 216 Ark. 574, 226 S.W.2d 544 (1950), the Clinton City Council employed Mr. Sitton as marshal even though Mr. Sitton was not a resident or "qualified elector" 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.

We 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 de facto officer "is not entitled to the salary provided for the services of city marshal." Sitton v. Burnett, 216 Ark. at 576, 226 S.W.2d at 545.

We then noted Mr. Sitton's argument that, "since he was concededly a de facto 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." 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 "usurpation of office," now codified at Ark.Code Ann. § 16-118-105 (1987). We said that a de facto officer qualifies as a "usurper" and that, if there is no person "entitled to the office" to bring suit, the "fees and emoluments" may be recovered "by the State"--apparently through a taxpayer-initiated suit--and "paid into the public treasury." Id. In that situation, the fees collected by the usurper "are not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance." Id. at 578, 226 S.W.2d at 546 (quoting Stephens v. Campbell, 67 Ark. 484, 55 S.W. 856 (1900)). The Sittoncase might be controlling here if Mr. Thrash had "usurped" the office of Adjutant General at the outset of his appointment, but that did not happen. Again, no one questions Mr. Thrash's qualifications to serve at the time he was appointed.

Revis v. Harris, 217 Ark. 25, 228 S.W.2d 624 (1950)("Revis I "), 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

if appellant's 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.

On remand, the Mayor argued that his receipt of money for his work as judge, and for the services "as a laborer for the water and light department," 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 "outside of his duties as mayor" but dismissed that part of...