B. Elements

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

B. Elements

It does not appear that any South Carolina appellate opinion has explicitly set forth the elements that must be stated in a petition for a writ of prohibition. The elements can be gleaned from the decisions, but first it must be noted that the writ is applicable to two circumstances: "... to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior Court or tribunal, or to prevent some great outrage upon the settled principles of law and procedure ...".²⁷ Thus, the elements must be stated in the alternative. It would appear that the petitioner's application must: (1) identify the inferior "tribunal;" (2) state that the tribunal is acting in a "judicial" or "quasi-judicial" function; (3) either assert an improper assumption of jurisdiction or "some great outrage;" (4) state consequent damage; and (5) assert the absence of an adequate and applicable remedy.²⁸

Corpus Juris Secundum has a similar, but somewhat longer, list. Its says that the petition must show that there is a matter actually pending in an inferior court that the court threatens to pass on, that tribunal is without jurisdiction or is acting in excess of its jurisdiction, that the petitioner would be injured by the action, and that the petitioner objected to the tribunal's jurisdiction.²⁹ The "pending matter" requirement is seldom discussed, perhaps because it is self-evident. If the purpose of the writ is to prohibit the lower tribunal from taking action, its purpose is lost once the action has been taken. The one appellate case to address the matter concluded exactly that. In State ex rel. Hamer v. Stackhouse,³⁰ the petitioner was a property owner whose neighbors employed a procedure created by state statute to establish a right of way over his land. Pursuant to the statute a board of three referees was created and they established the sought after road, for which the petitioner was evidently...