[Reid v. Moulton.] fraud, counting the votes would do no harm; if there was fraud, it was important that they should be counted. 9. Where the dissolution of the injunction might work irreparable mischief, the chancellor has a discretionary power to retain it, notwithstanding the denials of the answer; and the exercise of this discretion will not be interfered with, except for very strong reasons. Bibb v. Shackelford, 38 Ala. 611; Buchanan v. Ford, 29 Ga. 490; Rembert v. Brown, 17 Ala. 667; Miller v. Bates, 35 Ala. 580. The denials of the answer are only on information and belief, and are therefore insufficient to dissolve the injunction. Rodgers v. Rodgers, 1 Paige, 426. See, also, High on Injunctions, §§ 899-903; Roberts v. Anderson, 2 John. Ch. 204. PETERS, C. J. — This is an appeal from the decree of the chancellor in the court below, refusing to dissolve the injunctions granted in the cause by himself, on the grounds, chiefly, of a want of equity, and also on the answers. The questions of chief consequence in the case seem to be two. They are: 1st, What is the wrong, which the complainant seeks to have redressed? 2d, Can a court of chancery afford any redress appropriate to the prayer of the bill? If these questions are answered in the negative, then there is an end of the case, and the bill must be dismissed. But, if they are answered in the affirmative, it becomes the duty of the court to grant the relief appropriate to the case made by the statement of facts on which the suit is founded, if there is not a plain and adequate remedy provided in some other judicial tribunal of the State. Rev. Code, § 698, cl. 1. If these main questions are kept in view, it seems to me that the most pressing difficulties of this cause will soon vanish. If there is a right, and it is injured, or imperilled, it would be the opprobrium of the law, that there should be no remedy to redress the injury, or protect the right. It is a maxim of our system, that such an anomaly cannot occur. If, then, there is a remedy, it must be enforced in the court to which jurisdiction has been given to consider it and pass judgment upon it. To ascertain whether there is a case, which shows a right in the complainant to be protected, or a wrong to be redressed, it is necessary to look to the facts on which the suit is founded, as the same are stated in the bill. The stating part of the bill is divided into sections, which are numbered, as required by the 34th rule of chancery practice. Rev. Code, p. 824. I state the substance or the words of each of these sections in their order. [See statement of facts, supra.] Wherever there is a conflict of right, it becomes necessary to look to the title on both sides to determine it. Here, the con [Reid v. Moulton.] flict is about an office. An office is the subject of property, and, as long as it remains, it is entitled to the protection of the courts, just as other property would be, and to the same extent, and by the same means. In this State, this has long since been the settled law. It is said by Justice GOLDTHWAITE, in Wammack v. Holloway (2 Ala. 31): "We need not cite authorities to prove that, at common law, no one can be deprived of the right to exercise or hold a civil office, but by the judgment of his peers, as we have already shown that an office is a species of property." And in the same opinion it is further said: "An office is as much a species of property, as anything which is capable of being held, or owned; and to deprive one of, or unjustly withhold it, is an injury, which the law can redress in a manner as ample as it can any other wrong." 2 Ala. 33, 34, supra. I make these quotations to show, that an office is property, and, as such, is entitled to all the protection that the law can give to property. It is no answer to this to say, that an office which is given by law, may be taken away by the law; or, if it is given under a condition, that may defeat it, it is held under this condition. This was, in effect, so decided in the case of Perkins v. Corbin, 45 Ala. 103. But, here, the office has not been destroyed. It still exists. Then, turning to the title to it, as set out in the bill, whose claim is to be preferred and protected? Moulton shows, most clearly, that he was elected and chosen by a plurality or majority of the votes of the people of the city having a right to vote, as the mayor of Mobile. Under the law at the date of this election, the right to the office could not be conferred in any other manner than by a vote of the people. This has been so often declared by this court, and so constantly adhered to, that it needs no elaboration to make it plain to the commonest apprehension. Screws, ex parte, at January term, 1873; 2 Ala. 31, 33; State ex rel. Thompson v. Circuit Judge of Mobile, 9 Ala. 338; Ex parte Reid, at January term, 1874. This title, thus asserted, to the office, which grows out of, and stands upon an election by a majority of votes, is attempted to be answered by the sheriff's certificate of election held by Reid. But the bill shows that this certificate was procured by an unlawful conspiracy, and is fraudulent and void. So the title to the office stands, as shown in the bill, on the part of the complainant, upon an election by the people; and on the part of Reid, upon a fraudulent certificate of the sheriff, procured by an illegal conspiracy. If this statement is true, and the demurrer admits it, has the chancellor no jurisdiction of the fraud? no power to control the use of the false certificate procured by an illegal conspiracy, so as to prevent injury to the [Reid v. Moulton.] mayor-elect, who has the only legal title to the office, viz., election by a majority of the legal voters? As soon as it is admitted that the certificate of the sheriff is fraudulent, it is also admitted that it is void and worthless as a title; and if it is fraudulent and void, it cannot be the foundation of any legal claim to the office. It may be supposed that this is an anomaly in rights growing out of an election. But this is not so. Fraud is infinite. It is ever running into new channels to perpetrate new wrongs. Here, it seeks to defeat the people, and the man of their choice, in his election to an important office, conferred upon him by their votes. The votes of the people make the office and its emoluments the property of the complainant, and the chancellor has the power to protect these against the invasion of a fraud. But it may be asked, how is the election to be known? The law answers, by a majority of legal votes cast for the person claiming the office, and not by a fraudulent certificate of the sheriff. 9 Ala. 338, supra. It is the fraud which gives the court jurisdiction. And after jurisdiction has once rightfully attached, the court may preserve the ballots and poll-lists, as evidence of the complainant's right, and also as proof of the falsity and fraud of the sheriff's certificate. But it is contended, that, even if the certificate of the sheriff is fraudulent, yet there is no jurisdiction in equity, because there is a plain and adequate remedy provided in other judicial tribunals of the State; that is, by a contest of the election at law. There is no general law for the contest of all elections in this State. These laws are all special. Rev. Code, $$ 318 et seq. to the end of chapter, "Of Contesting Elections," p. 145. It will be seen that this chapter of the Code only provides for the contest of such elections as are named therein, and among these the officers of a city corporation are not mentioned. This seems to have been intended to be supplied by section 12 of the "Act to incorporate the city of Mobile," approved February 2, 1866. Acts of Ala. 1865-1866, pp. 202 et seq. This section is thus expressed: "That if any municipal election shall be contested in the city of Mobile, it shall be before the judge of the circuit court of Mobile district, or judge of the city court of Mobile. Testimony may be taken by a justice of the peace, or before a commissioner appointed by the judge trying the cause, for the purpose, or may cause the witnesses to come before him and depose in the case." Ib. p. 208, § 12. This clearly refers to some general law, which did not, and does not exist. It does not provide any mode of contest, or any causes of contest. In the absence of legislative authority, these cannot be provided by the courts. Then, the remedy thus intended to be provided is neither plain nor adequate. It can [Reid v. Moulton.] not, then, displace the jurisdiction of chancery, which extends "To all civil causes, in which a plain and adequate remedy is not provided in the other judicial tribunals." Rev. Code, § 698, cl. 1. The redress of the grievance complained of in this bill, is certainly a civil cause, and the jurisdiction to hear and determine it is expressly given by the statute above quoted. Its language comprehends all civil causes, in which a plain and adequate remedy is not provided in the other judicial tribunals. Just such is the case here. This section of the Code is a remedial statute, and it should be liberally construed. Blakeney v. Blakeney, 6 Port. 109; Sprowl v. Lawrence, 33 Ala. 674. It may also be said, that Reid was not a party to the conspiracy and fraud by which the alleged fraudulent certificate was procured. This is not sufficient, in such a case as this, to protect him. If he claims under it, he sanctions the fraud, and makes himself a party to it. He cannot be heard to set up a fraudulent claim, to defeat a better claim founded in right, upon an election by the people. For these reasons, which might be greatly extended, I cannot regard the bill in this case as wanting in equity. See the reasoning of the opinions in Ex parte Scott, 47 Ala. 609; and Bruner v. Bryan, at January term, 1874. The granting of an injunction is, more or less, a matter of reviewable discretion. So is its dissolution. Bibb v. Shackelford, 38 Ala. 611; Brooks v. Diaz, 35 Ala. 599; Boyd v. Anderson, 2 Johns. Ch. 202, and cases cited in the opinions above quoted; Rev. Code, §§ 3426, 3439. In view of these decisions, and the peculiar character of this case, I feel unwilling to declare that the learned chancellor in the court below abused his discretion in refusing to dissolve the injunctions in this proceeding. The judgment of the court below, refusing to dissolve the injunctions, or either of them, is affirmed, with costs. B. F. SAFFOLD, J. — 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 [Reid v. Moulton.] issuing 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. |