Downing v. Davis

• Decision Date: 27 September 1940
• Docket Number: No. 234.,234.
• Citation: 34 F. Supp. 872
• Parties: DOWNING v. DAVIS et al.
• Court: U.S. District Court — Southern District of Mississippi

34 F. Supp. 872

DOWNING v. DAVIS et al.

No. 234.

District Court, S. D. Mississippi, Jackson Division.

September 27, 1940.

Bidwell Adam, of Gulfport, Miss., and R. B. Terry, of Jackson, Miss., for plaintiff.

Hugh Gillespie, Dist. Atty., of Raymond, Miss., for defendants.

MIZE, District Judge.

This is a petition filed by the plaintiff asking for a writ of prohibition against a Justice of the Peace and Constable in Mississippi, seeking to prohibit the Justice of the Peace from issuing search warrants and the Constable from serving them outside his own district. The defendants have interposed a motion to dismiss.

The motion of the defendants is well taken. The writ of prohibition cannot run from the federal district court to a state court. In re Nathaniel Gordon, 1 Black 503, 17 L. Ed. 134; Title 28, § 342, U.S.C.A.

The petition alleges that a Justice of the Peace of the state is issuing search warrants and giving them to a Constable to serve at a time when there is available a Sheriff with a large number of deputies, to whom the writs should be directed, and avers that the Constable has executed some of these search warrants and has found in the possession of the plaintiff intoxicating liquor upon which the tax had been paid, and that, therefore, no federal law had been violated. The petition does not allege, but it is a fact of which the court takes judicial knowledge, that the possession of whiskey is prohibited in Mississippi. The petition avers that the plaintiff's rights guaranteed under the fourth and fifth amendments to the Federal Constitution have been violated, and that the provisions of the fourteenth amendment have been violated in that the plaintiff's property was being taken without due process of law and that he was being deprived of his liberty.

These provisions of the Federal Constitution do not apply. The plaintiff has a full, complete and adequate remedy at law in the state courts of Mississippi. Before the federal court could act, it would be necessary for him to show that the state courts were not adequate to give him relief, or that the state courts had arbitrarily refused to do so. No such allegation is made. The recent case of Mooney v. Holohan, 294 U.S. 103, 104, 55 S.Ct. 340, 342, 79 L.Ed. 791, 98 A.L.R. 406, is controlling. With reference to the availability of the state court remedy, the Supreme Court of the United States said in that case: "We are not satisfied, however, that the state of California has failed to provide a corrective judicial process. * * * Upon the state courts, equally with the courts of the Union, rests the obligation to guard and enforce every right secured by that Constitution. * * * In view of the dominant requirement of the Fourteenth Amendment, we are not at liberty to assume that the state has denied to its court jurisdiction to redress the prohibited wrong upon a proper showing and in an appropriate proceeding for that purpose."

The purpose of the writ of prohibition is to prevent the unlawful assumption of jurisdiction and is not for the purpose of correcting mere errors or irregularities. Ex parte Gordon, 104 U.S. 515, 26 L.Ed. 814; Ex parte Hagar, 104 U.S. 520, 26 L. Ed. 816; Ex...