A.H. Bell and R.C. McBee, both of Greenwood, for appellant.
When this matter of considering the motion to remand the cause that had been removed to the Federal District Court at Clarksdale was presented to Judge Edwin R. Holmes, it was then his duty to inquire into the jurisdiction of the motion; that is, whether he had the jurisdiction to hear and determine the same. In doing so, it became his duty to inquire into the following conditions: (a) Whether he had been appointed by the senior circuit judge of the circuit district to hold the district court in the place or in aid of the judge of the district wherein this cause was pending, and to have power to exercise the same powers vested in the judge of said district. (b) Whether the term of court that began in Clarksdale on the fourth Monday of January, 1935, had been finally adjourned by a proper order on the minutes thereof.
It is presumed that Judge Edwin R. Holmes came to the conclusion that he was so appointed and that such matter had been referred to him by the judge of the district in which Clarksdale is located and that he was to serve in the place or in the aid of the judge of said district. There seems to be no objection seriously presented to this feature of the cause by the appellee.
Having considered that he was to aid the judge of the Clarksdale District, it was then the duty of Judge Edwin R. Holmes to determine if the term of court began on the fourth Monday in January, 1935, had been closed or was still open, either for all purposes, or for such limited purposes, such as the entertaining of motions to remand and the like. It is a presumption of law that Judge Edwin R. Holmes did make such inquiry, and that on such inquiry he found that either the said January 1935 term was not adjourned, or that there was an order on the minutes thereof leaving said district court open for the purpose of entertaining and deciding
motions to remand causes to state courts that had previously been removed to the Federal District Court. There is no showing by the appellee that such order does not exist, and the presumption of law is that it does exist and that Judge Edwin R. Holmes so inquired into said term and so determined that an order permitting the court to hear motions to remand at any time was entered on the minutes of the said court.
15 C.J. 827; Broom v. Bd. of Suprs., Jefferson County, 158 So. 344 , 171 Miss. 586 ; Walton v. Gregory Funeral Home, 154 So. 717 , 170 Miss. 129 .
If there is any construction that can be placed on the acts of Judge Edwin R. Holmes in remanding this cause that upholds its validity, then it is the duty of the court to follow such construction. An act of the judge in vacation may be an act of the court, although the court be held over as the presumption this was held.
8 Am. Eng. Enc. Law (2 Ed.) 22, 23; L. N.R.R. Co. v. McDonald, 79 Miss. 641 .
Regarding the presumption of the validity of this order of remand, and respecting the duty of the court in interpreting it, or construing it, it seems to be almost universally held that judgments will, if possible, be declared valid, and the inference is that such are valid, until so shown by inescapable evidence to the contrary.
Scott County v. Dubois, 130 So. 106 , 158 Miss. 245 .
An inference must be drawn, therefore, as to whether the District Court that convened at Clarksdale on the fourth Monday in January, 1935, had entered an order of adjournment sine die, or had remained open for the hearing of motions to remand causes or other such matters as often come before the court when not actually engaged in the trial of cases during the session. Nothing appearing in the record, the presumption is that the court had not adjourned sine die, but was open for the hearing and deciding of such motion to remand.
15 C.J. 899, sec. 270; Harrison v. German-American
F. Ins. Co., 90 Fed. 758; Wallace v. Clements, 248 N.W. 58; Realty Holding Co. v. Donaldson, 294 Fed. 541; Abbott v. Brown, 241 U.S. 606 , 60 L.Ed. 1199.
It has been the uniform practice and custom for attorneys to meet at the chambers of the judge or at his office and present motions of this character.
Judge Holmes was appointed to assist the federal judge in the district court of the Northern District. He had all powers that the judge of that district had, but relinquished none of his powers in his district; in other words, he became judge of both districts while he was so acting for the judge of the northern district. The provision of statute authorizing a judge of one district to serve in the aid of another judge of a different district was enacted for the quicker dispensation of justice, the orderly trial of cases, and the efficient dispatching of business of the courts, and to prevent the law's delay. The appointment of Judge Holmes to assist the judge of the Northern District was in effect at the time of the signing of the order remanding this cause to the state court.
Cheesman v. Hart, 42 Fed. 98; In re American Hoke Furnishers' Corp., 296 Fed. 605; Apgar v. U.S., 255 Fed. 16; 28 U.S.C.A., sec. 13; 33 C.J. 966, sec. 92; Harlan v. McGourin, 180 Fed. 119, 54 L.Ed. 1101; U.S.C.A., sec. 731.
The order is valid on its face, and it recites that the defendant had been given "proper notice of the time, place and motion for remand, and of the hearing of said motion on this date before the undersigned in Yazoo City, Mississippi." The objection to this order as presented by the appellee constitutes a collateral attack on the judgment of the Federal District Court of Mississippi.
Under the authority of this order, which was issued by virtue of the provisions of Section 21, Title 28, of the U.S.C.A., Judge Holmes had authority to hear this
motion and render the order remanding it just as the judge of the Northern District could have done.
Apgar v. U.S., 255 Fed. 16.
This is not a direct attack on the judgment, and the other matters objected to by the appellee cannot be entertained in this proceedings.
Cotton v. Harlan, 87 So. 152.
On collateral attack, every intendment is in favor of the judgment.
Martin v. Miller, 60 So. 772; 28 U.S.C.A., sec. 71, 80, page 378.
The court could on its own motion have remanded this cause without any notice to either party, if at any time it appeared that the suit was not a one properly within the jurisdiction of the district court.
Indiana v. Tolleston Club of Chicago, 53 F. 18.
We submit that Section 1510 does not apply to county courts, but applies only to special courts of eminent domain. The Supreme Court of Mississippi has twice held that there are no special courts of eminent domain in counties where the county courts exist.
Hattiesburg v. Pritchett, 160 Miss. 342 , 134 So. 140 ; Miss. State Hwy. Dept. v. Haines, 139 So. 168 .
Section 1510, we contend, applies only to courts of eminent domain, and cannot apply, because of Section 17 of the Constitution, to county courts. Section 1510 does not apply to eminent domain proceedings in county courts. It is a part of Chapter 26 of the Code of 1930. It provides that the writ of prohibition shall be issued by the Circuit Judge who, "shall issue a temporary order staying the hearing in the court of eminent domain until the cause can be tried under this section by the circuit judge, and if on the hearing last aforesaid the petition be sustained a permanent writ of prohibition shall issue." It is noted that the temporary order stays the hearing in the court of eminent domain. In Leflore County there is a county court.
City of Hattiesburg v. Pritchett, 134 So. 140 , 160 Miss. 342 ; Miss. State Hwy. Dept. v. Haines, 139 So. 168 , 162 Miss. 216 .
The above authorities hold that there is no special court of eminent domain in Leflore County, and it is our opinion and contention that Section 1510 does not and cannot apply to a suit filed in the County Court. This point is jurisdictional and can be raised at any time and in any manner.
To permit the question of public necessity to be reviewed by a court, as provided by Section 1510 of the Code of 1930, is a violation of Section 17 of the Constitution of the State of Mississippi.
Means Johnston, Sam L. Gwin, and Berry D. Brown, all of Greenwood, for appellee.
The proceeding in eminent domain was a removable cause and the City of Greenwood under the jurisdictional and removal statutes of the United States was a citizen of Mississippi.
1 Hughes Federal Practice, sec. 302, pages 226, 227; Sugar Creek, P.B. P.C.R. Co. v. McKell, 75 Fed. 34; Deepwater Ry. Co. v. Western Pocahontas Coal Lbr. Co., 152 Fed. 824; Searl v. School Dist., 124 U.S. 197 , 31 L.Ed. 415, 8 S.Ct. 460; 7 Cyc. of Federal Procedure, sec. 3624, page 586; 2 Hughes Federal Practice, sec. 714, page 39; City of Detroit v. Detroit City Ry. Co., 54 Fed. 1; City of New York v. Sage, 206 Fed. 369.
The eminent domain proceeding was legally removed by proper procedure and by the judgment of the county court, from the county court into the proper division of the District Court of the United States for the proper district; the removal perfected by the filing of a certified copy of the record and the pleading by the defendant, Humphrey Co., Inc., in the District Court within the time provided by the United States statute; exclusive
jurisdiction transferred to the District Court; and the case thereupon became and was within the provision of the United States statute, that "the cause shall then proceed in the same manner as if it had been originally commenced in the said District Court."
28 U.S.C.A., sec. 72 (Judicial Code, sec. 29); 4 Hughes Federal Procedure, page 313, sec. 2543; Miller v. Southern Bell Tel.
Tel. Co., 279 Fed. 806; Hinman v. Barrett, 244 Fed. 621; Potter v. General Baking Co., 213 Fed. 697; Lewis v. Erie R.R. Co., 257 Fed. 869; Dobie on Federal Procedure, sec. 107; Rose's Federal Jurisdiction and Procedure (3 Ed.) secs. 4 and 425; Ritchey Lithographing Corp. v. Robertson-Cole Distributing Corp., 199 App. Div. 362 , 191 N.Y.S. 870; 4 Hughes Federal Practice, page 311, sec. 2542; Chase v. Erhardt, 198 Fed. 305; 4 Hughes Federal Practice, sections 2581-2583; Lee v. Continental Ins. Co., 292 Fed. 408; Streckfus Steamer v. Kiersky, 163 So. 830 ; Standard Oil Co. v. Decell, 166 So. 379 ; Hercules Powder Co. v. Nix, 144 Miss. 113 , 109 So. 862 ; Sutton v. Pacific S.S. Co., 3 F.2d 72 ; Ex parte Hollon Parker, 131 U.S. 221 , 33 L.Ed. 123, 9 S.Ct. 708; Niccum v. Northern Assur. Co., 17 F.2d 410 ; Bon v. Midwest Refining Co., 30 F.2d 410 ; 4 Hughes Federal Practice, sec. 2675.
The proceeding to remand the eminent domain suit to the County Court of Leflore County can be legally heard and determined only by the United States District Court, during a term thereof held in and for the Delta Division of the Northern District of Mississippi. No valid judgment could be rendered otherwise.
28 U.S.C.A., sec. 80, Judicial Code, Sec. 37; Historical Note to 28 U.S.C.A., sec. 80; Henry v. West, 49 F.2d 813 .
The Circuit Court of Appeals and the District Courts of the United States are not possessed of the jurisdiction of courts of the common law, and they have such jurisdiction only as is conferred on them by acts of Congress.
U.S. v. Curran, 297 Fed. 946.
The United States District Courts have such jurisdiction as Congress confers.
Heine v. New York Life Ins. Co., 50 F.2d 382 ; Rose's Federal Jurisdiction and Procedure (3 Ed.), sec. 22, page 27; Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147; 28 U.S.C.A., sec. 13, Judicial Code, sec. 9; 1 Hughes Federal Practice, sec. 239; Grover B.S.M. Co. v. Florence S.M. Co., 21 L.Ed. 914; Ackerson v. U.S., 15 F.2d 268 ; Payne v. Garth, 285 Fed. 301; Pollock v. Farmers' Loan Trust Co., 157 U.S. 429 , 39 L.Ed. 759, 15 S.Ct. 673; Pacific S.S. Co. v. Peterson, 278 U.S. 130 , 73 L.Ed. 220, 49 S.Ct. 75.
Inasmuch as it is seen that a United States District Judge has no authority in vacation except such as is specifically conferred upon him by Congress; and, inasmuch as there is no general authority conferred by any statute of the United States upon a district judge to hear, determine, or adjudicate, whether of law or of fact, any issue, phase, proceeding, or part thereof, or to take any action whatsoever in vacation, in any matter involved in a suit at law pending in a district court; and, inasmuch as there is no special statute authorizing the remanding of causes in vacation, nor any statute, other than the general remanding statute, under or by analogy with which even color of legal right to remand in vacation a suit at law could be claimed; and, inasmuch as before an order of a district judge made in vacation, purporting to remand a suit at law to a state court can be declared valid, specific authority for the making thereof must be contained, expressly or by necessary implication, in some statute of the United States, and moreover, must be capable of being pointed out; it is obvious, therefore, that unless the general statute authorizing dismissal or remand by the court (28 U.S.C.A., sec. 80, Jud. Code, sec. 37) of suits pending in a district court, confers upon the district judge of the district
in which the suit is pending, expressly or by necessary implication, the power to remand a suit at law in vacation, the order remanding the eminent domain proceeding involved in the case at bar is coram non judice even if it had been made in vacation in the division and district where it is pending by the district judge of and resident in that district, and, a fortiori, is void because initiated and made outside of such division and outside of such district, in a distinct, separate and foreign territorial jurisdiction, by a judge of such foreign jurisdiction.
Richmond Danville Ry. Co. v. Thouron, 134 U.S. 45 , 33 L.Ed. 871, 10 S.Ct. 517; Gurnee v. Patrick County, 137 U.S. 141 , 34 L.Ed. 601, 11 S.Ct. 34; 4 Hughes Federal Practice, sec. 2674; Realty Holding Co. v. Donaldson, 294 Fed. 541.
It is the duty of the court, at all times and at any time during the pendency of the suit, to remand the case when it is manifest upon the face of the affidavit or removal petition that the case has been improperly removed.
4 Hughes Federal Practice, sec. 2674; Ayres v. Wiswall, 112 U.S. 187 , 28 L.Ed. 693, 5 S.Ct. 90; Cameron v. Hodges, 127 U.S. 322 , 32 L.Ed. 132, 8 S.Ct. 1154; Nashua L.R. Corp. v. Boston
L.R. Corp., 136 U.S. 356 , 34 L.Ed. 363, 10 S.Ct. 1004; U.S.C.A., Title 28, sec. 80, note 192-193; Rosenbaum v. Bauer, 120 U.S. 450 , 30 L.Ed. 743, 7 S.Ct. 633; Albright v. Teas, 106 U.S. 613 , 27 L.Ed. 295, 1 S.Ct. 550; Pittsburg, C. St. L.R. Co. v. Ramsey, 22 Wall. 322, 22 L.Ed. 823; Hartog v. Memory, 116 U.S. 588 , 29 L.Ed. 725, 6 S.Ct. 521; Blythe v. Hinckley, 173 U.S. 501 , 43 L.Ed. 783, 19 S.Ct. 497.
It is to be recalled that in the case at bar, the petition for the removal of the eminent domain proceedings to the United States District Court alleged that the defendant, S.L. Gwin, had no interest in the property
sought to be condemned by the City except as a stockholder of the foreign corporation owning the property, the real defendant in the eminent domain proceedings, and that the said defendant was made a party fraudulently for the purpose of preventing the removal of the suit to the District Court of the United States. In such a situation it is always necessary, if the allegation is traversed by a motion to remand, for the United States District Court to take evidence as well as when there is a dispute as to the citizenship of the parties or as to the amount involved, as where, as in the case at bar, the amount is dependent upon the value of the property; and this is always done, except where, in the sound legal discretion of the court, affidavits are permitted, by testimony before the court or by submission of the issue to the jury, which may be done by submission to the jury on a trial on the merits or upon a special issue before the trial on the merits.
Fielding v. Toledo O.C. Ry., 33 F.2d 993 ; Gibson v. Chesapeake Ohio Ry. Co., 215 Fed. 24; American Stores Co. v. Gerlach, 55 F.2d 658; General Investment Co. v. Lake Shore M. S. Ry., 260 U.S. 261 , 67 L.Ed. 244, 43 S.Ct. 106; Wilson v. Republic Iron Steel Co., 257 U.S. 92 , 66 L.Ed. 144, 42 S.Ct. 35; Hercules Powder Co. v. Nix, 144 Miss. 113 , 109 So. 862 ; Burlington C.R. N.R. Co. v. Dunn, 122 U.S. 513 , 30 L.Ed. 1159, 7 S.Ct. 1262; Haveron v. Bantivoglio, 13 F. (2 Ed.) 644; Bison State Bank v. Bilington, 228 F. 116, 142 C.C.A. 522; U.S. v. Sanders, 27 Fed. Cas. 950, No. 16,220; Beaudin v. Chicago M. St. P. P.R. Co., 52 F.2d 811 ; Deputron v. Young, 134 U.S. 241 , 33 L.Ed. 923, 10 S.Ct. 539; Wetmore v. Rymer, 169 U.S. 115 , 42 L.Ed. 682, 18 S.Ct. 293.
There is no provision in the dismissal or remanding statute (28 U.S.C.A. 80) for a division of activity as between the court and the judge in vacation as that some cases would necessarily have to be heard and determined
by the court, while other cases might be heard and determined by the judge in vacation. Nor does the statute admit of any such construction. There is only one agency designated by the statute to perform all of the duties imposed and exercise all of the powers conferred by the statute. If the district judge has the power in vacation apart from the court to remand a suit at law, he also, as conclusively appears from the authorities hereinbefore referred to, has the power in vacation to dismiss that same suit at the consideration even of the question of remanding it. Likewise, if a district judge has the power in vacation to dismiss or remand a removed suit, he has also, as is conclusively shown by such authorities, the power in vacation to dismiss a suit commenced in the United States District Court. To impute to the statute an intention that there should be a distribution of the judicial functions provided for by it between the court and the judge in vacation, as that removed suits can be dismissed only by the court in term, and that original suits can be dismissed only by the court in term, but that removed suits can be remanded by a district judge in vacation would not be an interpretation or construction of this statute, but would be a new law made by the court and far beyond congressional contemplation.
Town of Andes v. Slauson, 130 U.S. 435 , 32 L.Ed. 989, 9 S.Ct. 573; Carper v. Fitzgerald, 121 U.S. 87 , 30 L.Ed. 882, 7 S.Ct. 825; McKnight v. James, 155 U.S. 685 , 39 L.Ed. 310, 15 S.Ct. 248; Lambert v Barrett, 157 U.S. 697 , 39 L.Ed. 865, 15 S.Ct. 722; Craig v. Hecht, 263 U.S. 255 , 68 L.Ed. 293, 44 S.Ct. 103; Naeglin v. DeCordoba, 171 U.S. 638 , 43 L.Ed. 315, 19 S.Ct. 35; Colvin v. City of Jacksonville, 158 U.S. 456 , 15 S.Ct. 866, 39 L.Ed. 1053; U.S. v. Larkin, 208 U.S. 333 , 52 L.Ed. 517, 28 S.Ct. 417; Maynard v. Hecht, 151 U.S. 324 , 38 L.Ed. 179, 14 S.Ct. 353; The Bayonne, 159 U.S. 687 , 40 L.Ed. 3, 16 S.Ct. 185; Muller v. Ehlers,, 36 L.Ed. 942, 13 S.Ct. 44.
The plain, clear, unambiguous, and directed phraseology of the dismissal or remanding statute (28 U.S.C.A. 80), without connecting it with the other statutes of the United States hereinbefore called to the attention of this court, and other statute in pari materia leaves no room for any implication that the judicial functions therein devolved upon the United States District Court might be exercised by a United States District Judge in vacation. The consideration of the statute in connection with the other statutes in pari materia renders such an implication wholly impossible.
1 Hughes Federal Practice, sec. 239; Emlenton Refining Co. v. Chambers, 14 F.2d 104 ; Federal Intermediate Credit Bank v. Mitchell, 277 U.S. 213 , 72 L.Ed. 854, 48 S.Ct. 449; 2 Lewis' Sutherland Statutory Construction 2d, secs. 366 and 399; 1 Hughes Federal Practice, secs. 9, 11, 13; Henderson v. Blair, 102 Miss. 640 , 59 So. 859; U.S. v. Goldenberg, 168 U.S. 95 , 42 L.Ed. 394; 18 S.Ct. 3; Green v. Weller, 32 Miss. 650 ; Lemonius v. Mayer, 71 Miss. 514 , 14 So. 33; L. N.R. Co. v. MacDonald, 79 Miss. 641 , 31 So. 317; 8 Am. Eng. Ency. L. 2d pages 22-23; Henry v. West, 49 F.2d 813 .
There was no warrant of law for the hearing or determination of a proceeding to remand the eminent domain suit involved in the case at bar outside of the territorial jurisdiction of the United States District Court for the Delta Division of the Northern District of Mississippi, and the order made by United States District Judge E.R. Holmes, purporting to remand said suit to the County Court of Leflore County, was for that reason, among others, coram non judice and void.
28 U.S.C.A., sec. 114 (Jud. Code, sec. 53); Primos
Chemical Co. v. Fulton Steel Corp., 254 Fed. 454; Toland v. Freig, 12 Pet. 300, 9 L.Ed. 1093; 1 Hughes Federal Practice, sec. 250; 28 U.S.C.A., sec. 22; Johnson v. Manhattan Ry. Co., 289 U.S. 479 , 77 L.Ed. 1331, 53 Sup. Ct. 721; 28 U.S.C.A., sec. 22 (Jud. Code 18), and sec. 22; In re Tampa Suburban R. Co., 168 U.S. 583 , 42 L.Ed. 589, 18 Sup. Ct. 177; State of Ohio v. Swift Co., 260 U.S. 146 , 67 L.Ed. 176, 43 Sup. Ct. 22; Ex parte Hollon Parker, 131 U.S. 221 , 33 L.Ed. 123, 9 Sup. Ct. 708; Horne v. Pere Marquette R. Co., 151 Fed. 626; Ex parte Harlan, 180 Fed. 119; Harlan v. McGourin, 218 U.S. 442 , 54 L.Ed. 1101, 31 Sup. Ct. 44.
The record of the eminent domain proceeding in the County Court of Leflore County did not show, when the writ of prohibition was issued, that the county court had jurisdiction to proceed in the cause.
Penoyer v. Neff, 95 U.S. 713 , 24 L.Ed. 565; Lion Bonding
Surety Co. v. Karatz, 262 U.S. 77 , 67 L.Ed. 871, 43 Sup. Ct. 480; Barney v. Latham, 103 U.S. 205 , 26 L.Ed. 514; City of Gainesville v. Brown-Crummer Inv. Co., 277 U.S. 54 , 72 L.Ed. 781, 48 Sup. Ct. 454; Postal Telegraph Co. v. Thompson, 121 Miss. 379 , 83 So. 612; 9 Ency. of Evidence, page 931; Simpson v. Phillips, 164 Miss. 256 , 141 So. 897 ; Abbott v. Brown, 241 U.S. 606 , 60 L.Ed. 1199, 36 Sup. Ct. 689; Dyson v. State, 26 Miss. 362 ; Lewis v. U.S., 116 U.S. 374 , 36 L.Ed. 1013, 13 Sup. Ct. 137; Simpson v. Phillips, 164 Miss. 256 , 141 So. 897 ; Yale v. Taylor, 63 Miss. 598 ; Lyons v. Steele, 86 Miss. 261 , 38 So. 371; Anderson v. Hattiesburg, 131 Miss. 216 , 94 So. 163; 2 Lewis' Sutherland Statutory Construction 2d, sec. 422, page 814.
The County Court of Leflore County in a proceeding in eminent domain is a court of special and limited jurisdiction. A proceeding in condemnation is in derogation of the common right. Every prerequisite essential to the jurisdiction of the court must appear affirmatively of record. The County Court was divested of jurisdiction
of the eminent domain proceeding by its own judgment removing the proceeding to the United States District Court. Unless it appeared at the filing of the petition for the writ of prohibition in the case at bar affirmatively from the record of the County Court that it was authorized to resume jurisdiction of the proceeding, it was without warrant of law to proceed, and any judgment which might have been rendered by it would have been reversed on appeal and void on collateral attack. The office of a writ of prohibition is to obviate the circuity of action which such a proceeding would have entailed. It is respectfully submitted that regardless of all things else, the naked order of Judge Holmes remanding the case, shown to have been made in vacation at Yazoo City, was not sufficient to show affirmatively jurisdiction in the County Court to resume the proceeding, and, as shown in the record in the case at bar, that is the only evidence appearing in the records of the proceeding in the County Court to establish the warrant of the County Court to resume its jurisdiction. So that the record of the County Court failed to show its jurisdiction, and this fact alone was sufficient to authorize the issuance of the writ of prohibition to prevent the County Court from a threatened exercise of the jurisdiction which was not shown of its own records to be possessed by it.
Hurley v. Wells-Newton Nat. Corp., 49 F.2d 914 ; Blythe v. Hinckley, 173 U.S. 501 , 43 L.Ed. 783, 19 Sup. Ct. 497; Defiance Water Co. v. Defiance, 191 U.S. 184 , 48 L.Ed. 140, 24 Sup. Ct. 63; Stewart v. Cybur Lbr. Co., 111 Miss. 844 , 72 So. 276; Thomas v. Delta L. W. Co., 258 Fed. 758; L. N.R. Co. v. Garnett, 129 Miss. 795 , 93 So. 241, 132 Miss. 468 , 96 So. 519; White v. Railroad Co., 64 Miss. 566 , 1 So. 730.
It is contended for appellant that Section 1510 of the Code of 1930 is applicable to justices of the peace, sitting with the jury as special courts of eminent domain, but is not applicable to a suit in eminent domain in county
courts. It is not denied by appellant that the Legislature had the power to make this statute applicable to all proceedings in eminent domain, in whatever court originating, and the Legislature in the adoption of the statute made no such distinction as that which appellant contends should be implied from the statute by this court. There does not seem to be any ambiguity in the statute. The language is plain and clear. It must be assumed that the statute expresses what the Legislature intended, and there is nothing in the statute which warrants the implication contended by appellant. Such an implication would not be interpretation; it would be new law.
The writ of prohibition is one of the oldest writs known to the common law, employed from time immemorial in England, and accepted generally in the United States. It has always issued out of a superior court of original jurisdiction to an inferior court to prohibit the latter from exceeding its jurisdiction or usurping a jurisdiction it did not possess, especially when irreparable injury may be anticipated from its proceeding.
Planters Ins. Co. v. Cramer, 47 Miss. 200 ; Crisler v. Morrison, 57 Miss. 791 .
In the case at bar, if the property should be condemned, the city would take possession for the use of and to be delivered or transferred automatically to the Mississippi Power Light Company upon the tender or payment by the city to the clerk of the amount of the award, however inadequate, and they together pending the appeal from the condemnation proceeding deprive the owner of its possession, and so fortify themselves in the possession of the property, as to relegate the appellee to a different and less adequate remedy, depriving it of the right guaranteed to it by the Constitution to have compensation legally adjudicated, before surrendering possession even though such appeal might result in the dismissal of the condemnation proceeding.
Crittendon v. Booneville, 92 Miss. 277 , 45 So. 723, 131 Am. St. Rep. 518.
We are unable to accord with the announcement in appellant's brief that the purpose to which writs of prohibition are applied by the provisions of Section 1510 of the Code of 1930 are exclusive, or have the effect of abolishing common law writs of prohibition. The remedy of writs of prohibition having been by this court from time to time enlarged and extended to meet the demands of justice where other remedies were found to be inadequate, the Legislature providently extended the office of the writ to the purposes enumerated in the statute, as to which under precedents it had not before that time been applicable. It not only extends the writ of prohibition to the purposes enumerated in the statute but extends for the benefit of the owner of private property the power of the court to determine, freed from former presumptions, to be tried like any other issue, the question as to whether there exists a public necessity for the condemnation.