I concur with the chief justice, and submit the following as a further expression of my opinion.
The gist of the principle which governs this case is: Does the public interest require that, in all cases, the holder of the certificate of election shall take the office until his right thereto is determined adversely? Between individual claimants, the office is property, or partakes so much of its nature, that no doubt can be entertained of the jurisdiction of chancery when any of the grounds of its jurisdiction arises. The certificate of election cannot be any more than the written declaration of the officer, whose duty is to make it, that the person to whom it is given has received the highest number of votes. Can no accident, mistake, or fraud ever occur in the making or *272issuing of this declaration ? Such presumption is dispelled by the facts of this case. The circuit judge, by mandamus, compelled the sheriff to make the certificate in favor of one to whom he might not have issued it, and certainly should not have done so, if he had counted the ballots, as he proposed to do, and found them to be as alleged in this bill.
As the certificate is nothing more than the evidence of the election, the election, and not the evidence of it, confers the right to the office. If this certificate, or evidence, is wholly false, it is plain that the holder of it may take the office against the one who is really entitled to do so. Is this promotive of the public interest ?
It is said, that the delays of the chancery court would permit a pretender of elastic conscience to usurp an office, without shadow of right, by a bill of injunction. To do so, he would have to commit perjury, and to give a bond sufficient to answer for all advantage he might gain. Such a man would find it cheaper and safer to obtain a fraudulent certificate. But the court of chancery is not a delay court. In ten days, the injunction may be determined. If, however, six months, or even the whole term of the office be required, it merely decides who shall hold the office while the right to it is being adjudicated in the court of law, and who shall institute that proceeding. Is this subversive of the public interest ?
The court of law is equally slow in its progress ; and, during the delay, the fraudulent certificate is prevailing, without oath, or bond of indemnity. A fraudulent injunction is more hazardous, and more difficult to obtain, and to keep, than a fraudulent certificate. The court of chancery is a high and honorable court; equal in dignity to the circuit court. Its examinations are searching and convincing, giving as much satisfaction to the people as those of any other court. It does not try the right to the office, nor even conclusively decide upon the fraud. These issues are determinable finally only in the court of law.
In the present case, it is not Moulton without a certificate who is put in office by the chancery court. It is Moulton retained in office, under a former election, until his successor is elected and qualified. The chancery court is representing the people, by restraining the operation of a false evidence of title to office, and preserving to them an officer duly elected, and, by lawful tenure, awaiting the ascertainment of his successor.
Brickell, J., dissented, and referred, for the grounds of his dissent, to the dissenting opinion which he delivered, at the last term, on the application by Reid for a writ of prohibition. *273This opinion was lost when that case was reported, and the reporter was not then able to obtain a copy of it for publication. He has since then procured a copy, and herewith publishes it.