H. D. SINES, Appellant,
Crosby G. HOLDEN, Appellee.
[89 Ariz. 208] Robert Morrison, former Atty. Gen., Gordon Aldrich, former First Asst. Atty. Gen., Robert Pickrell, present Atty. Gen., for appellant.
Flynn & Allen and Charles E. Cates, Phoenix, for appellee.
BERNSTEIN, Vice Chief Justice.
This is an action of mandamus to compel the personnel director of the State Highway Department to process an application for refund of retirement funds. The facts are:
Crosby G. Holden (hereinafter called 'petitioner') was employed by the State of Arizona in the State Highway Department. During such employment he made regular contributions from his salary to the Arizona State Retirement System Fund pursuant to A.R.S. §§ 38-745, 38-748.
During the course of his employment, it was asserted in a formal complaint by an officer of the Highway Department that the petitioner was guilty of a violation of trust, for which he was charged and bound over in several actions to the Superior Court of Maricopa County. The petitioner was charged with grand theft, presenting false claims and conspiracy and was subsequently convicted of conspiracy.
Upon the disclosure of this violation of trust, the petitioner was discharged or asked to resign from his employment with the State Highway Department. The petitioner, pursuant to the rules and regulations of the State Retirement System, filled out an application for return of his contributions (withheld from his regular pay) to the Retirement Fund with interest and submitted it to H. D. Sines, Personnel Director of the Arizona State Highway Department (hereinafter called 'respondent'). The respondent refused to process the application on advice of the Attorney General.
The petitioner brought this action of mandamus to compel the respondent to process the application. The trial court granted the petitioner a peremptory writ of mandamus, and from this judgment the respondent appeals.
[89 Ariz. 209] One assignment of error is alleged for our determination. The respondent contends that he had a right to show that the petitioner was in court with 'unclean hands' and was therefore not entitled to the relief sought.
Mandamus is an extraordinary remedy based upon the premises that the petitioner has a clear right to the relief sought, that the respondent had a legal duty to do the thing which the petitioner seeks to compel and that there is an absence of another adequate remedy. Adams v. Bolin, 77 Ariz. 316, 271 P.2d 472; Graham v. Moore, 56 Ariz. 106, 105 P.2d 962; Taylor v. Tempe Irrigating Canal Co., 21 Ariz. 574, 193 P. 12.
The petitioner, by virtue of his employment in the State Highway Department and A.R.S. §§ 38-745, 748, became a member of the retirement system and was required to contribute a certain portion of his regular pay to the system. Upon his termination of employment, other than by death, the petitioner was entitled under A.R.S. § 38-758 to apply for a refund of his contributions to the retirement fund plus interest. The Retirement System Board requires that the application for such refund be certified by the employer stating that the petitioner is an ex-employee and the final payroll period for which a deduction was made and the amount thereof. The petitioner, therefore, had a clear right to the relief sought and the respondent respectively had a duty to process his application. There being no other adequate remedy at law, the petitioner, in the absence of other controlling facts, would have been entitled to the relief he sought.
The writ of mandamus is a discretionary writ and even in a case where an absolute legal right is shown, it will be withheld whenever it would aid those who do not come into court with clean hands and wherever the public interest would be adversely affected. United States ex rel. Turner v. Fisher, 222 U.S. 204, 32 S.Ct. 37, 56 L.Ed. 165; State ex rel. Anderson v. Hare, 78 Or. 540, 153 P. 790.
In 2 Pomeroy 91, Equity Jurisprudence, 5th Ed., § 397, after discussing the equitable maxim, 'he who seeks equity must do equity,' the author states:
'* * * On the other hand, the maxim now under consideration, He who comes into equity must come with clean hands, is much more efficient and restrictive in its operation. It assumes that the suitor asking the aid of a court of equity has himself been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and therefore refuses him all recognition and relief with reference to the subject-matter or transaction in question. It says that whenever a party, [89 Ariz. 210] who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors ...