C. Elements Defined

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

C. Elements Defined

1. Inferior "Tribunal"

A writ of prohibition must be directed toward an "inferior tribunal."³⁴ Ordinarily, the aspect of inferiority is evident: the object of the writ is a lower court.³⁵ In that case, there is also no question that the object is a "tribunal." However, historically, the writ could be directed to an individual³⁶ or a body.³⁷ Thus, governmental officials,³⁸ administrative agencies,³⁹ and local governments,⁴⁰ have all been the object of petitions for a writ of prohibition. In those cases, the second element - judicial or quasi-judicial function - is of pivotal importance.

When the petitioner identifies the inferior tribunal, he or she should also, following the Corpus Juris Secundum description of a proper application for the writ discussed above, state that the matter at issue is pending before the inferior tribunal and that he or she has objected.⁴¹

2. The Tribunal Is Acting in a "Judicial" or "Quasi-judicial" Function

The vast majority of applications for a writ of prohibition challenge the jurisdiction of a trial level court and there is in those cases no question that a "tribunal" is acting in a "judicial" function.⁴² The matter becomes less clear when an individual or a government agency is the object of the petition. For example, in Berry v. Lindsay,⁴³ the petitioners were consumers who sought a writ of prohibition against the state's Chief Insurance Commissioner to restrain additional rate increases for automobile liability insurance as long as the insurance industry as a whole was showing a profit. A county court sustained a demurrer to the petition and the petitioners appealed to the South Carolina Supreme Court which affirmed. The court said it seemed clear a prohibition would not lie to prohibit the commissioner from performing a particular function unless it was judicial or quasi-judicial. While the court had not previously considered the nature of rate making, numerous State and Federal Courts had done so and consistently held that rate making is a legislative function. The court agreed, characterizing approval of an increase in automobile liability insurance rates by the commissioner as a quasi-legislative function for which prohibition would not lie.⁴⁴ It also appears that prohibition may not be invoked against an executive act, specifically an executive act of the Governor.⁴⁵

A full exploration of the meaning of "quasi-judicial" under South Carolina law is beyond the discussion of this chapter.⁴⁶ Generally, however, administrative agencies carrying out an adjudicatory function - for example granting or denying a license⁴⁷ - are considered to be carrying out a quasi-judicial function.⁴⁸ While some courts consider a site-specific rezoning - as opposed to a rezoning of general application - to be "quasi- judicial,"⁴⁹ South Carolina still views these rezonings to be legislative.⁵⁰ On the other hand, for the most part South Carolina statutes treat Boards of Zoning Appeals as quasi-judicial actors.⁵¹

3. An Improper Assumption of Jurisdiction or "Some Great Outrage"

The third element must be stated in the alternative: either the petition must allege improper assumption of jurisdiction or "some great outrage." In almost all the reported appellate decisions the petition alleges lack of jurisdiction,⁵² usually in a court,⁵³ but occasionally in an agency.⁵⁴ Generally in those case, the matter can be addressed by simply examining the apparent source of jurisdiction. Petitions based on "some great outrage" are rare and problematic. Petitioners in these cases are faced with overcoming the emphatic affirmation of the courts that prohibition "... should be used with forbearance and caution, and only in cases of necessity."⁵⁵

One case in which a petitioner overcame that forbearance is State ex rel. Zimmerman v. Gibbes,⁵⁶ a depression era decision. Gibbes was a depositor in a bank and brought an action representing himself and other depositors against Zimmerman, individually and as conservator of the bank. He alleged the bank's funds were being depleted and asked that its assets be liquidated and applied to the debts of its depositors and other creditors and that a receiver be appointed. Zimmerman then sought a writ of prohibition to restrain Gibbes and the lower court from further proceedings in the case. The South Carolina Supreme Court granted the writ of prohibition saying that the circumstances required a speedy disposition of the questions presented and that appeal did not afford the petitioners a "completely adequate remedy" that would justify refusing the writ on that ground. The Gibbes decision was distinguished by the court in State Board of Bank Control v. Sease,⁵⁷ which explained the circumstances that required a "speedy disposition." Sease was a circuit court judge who appointed a receiver for one bank and issued a rule to show cause why one should not be appointed for another. The State Board of Bank Control had appointed a conservator for each of those institutions. The board, in a petition for a writ of prohibition, maintained the judge lacked the power to make the receivership orders. The South Carolina Supreme Court refused the writ and distinguished Gibbes saying that it presented an emergency, but there was no emergency in Sease that would warrant the court departing from the principles applicable to a writ of prohibition. The court went on to say:

When the Zimmerman case was presented to the Court, economic chaos threatened the nation; financial institutions of all kinds were tottering, not because of insolvency, but because of a panic which was causing people to withdraw and hoard their funds. These conditions brought about the enactment of legislation, both state and federal, that was strictly of an emergency character, and was so designated. It was under such conditions, and to deal with legislation of that character, that this Court assumed original jurisdiction in the Zimmerman case, and undertook therein to dispose of all of the issues presented by the pleadings. ... In the present case we are not dealing with any emergency in the economic field, nor even with an extraordinary emergency relating to the particular financial institutions in question; and the legislation whose constitutionality, application and construction are involved here is permanent legislation, with no emergency characteristics of any kind.⁵⁸

Woodworth v. Gallman,⁵⁹ is another case in which the state Supreme Court granted a writ of prohibition and assumed original jurisdiction of the case. Gallman concerned the efforts of the Housing Authority of the City of Spartanburg to clear slums and construct low- rent housing projects. A city taxpayer brought suit to enjoin further functioning of that Authority. The defendants sought a writ of prohibition. The court granted the petition. It noted that the petitioners contended the injunction action was timed to "paralyze" the Authority's efforts, that contracts had been entered into, land had been acquired, and considerable money had been borrowed and spent. They further asserted that a speedy determination of the controversy was required to prevent "grave injustice and the irreparable injury" to the Authority since the time that would normally be consumed in a trial would result in a "complete disruption" of the Authority's organization and the delay would defeat the purpose for which it was organized and "amount practically to a death sentence." While never using the word "outrage," the court was evidently moved. It said time appeared to be of the essence and a remedy by appeal inadequate. It therefore granted the writ of prohibition and assumed original jurisdiction, "to the end that there may be a speedy determination of the case."

While there are these few examples of a court granting a writ of prohibition when the request is based on an allegation other than lack of jurisdiction, most petitions under those circumstances are denied.⁶⁰

4. Damage

The damage element was mentioned in Ex parte Jones,⁶¹ where the court said it had to ask whether the allegations of the complaint showed jurisdictional defects and "consequent damage." The court did not explain what damage was sufficient, nor does it appear that any other South Carolina appellate decision has done so.⁶² That damage must be shown, however, is confirmed by Corpus Juris Secundum which says that one petitioning for a writ must show he or she would be injured by the action contemplated.⁶³ The cases it cites for that proposition unfortunately don't provide much definition of the element.⁶⁴

A review, however, of cases where the court has granted a writ of prohibition gives some indication of the meaning of "consequent damage." In some cases the damage that would have followed had the writ not issued was fairly commonplace: ejectment from property;⁶⁵ appointment of a receiver;⁶⁶ imposition of liens on endowment insurance policies as part of a plan for rehabilitation of an insurance company;⁶⁷ and closing of a "dispensary for sale of alcoholic and malt liquors."⁶⁸ In one case the injury described by the court could have been potentially catastrophic. In 1933, during the banking crisis, a depositor brought an action against the bank's conservator seeking appointment of a receiver. The conservator had been appointed pursuant to the Banking Act of 1933. That Act prohibited institution of any legal proceedings "of any nature whatever" against any bank, banking institution, building and loan association or cash depository, without the written approval of the Governor of the State while the Governor was in control of them under the provisions of the Act. The depositor's action challenged the constitutionality of that Act. The State sought a writ of prohibition to have the suit dismissed. The South Carolina Supreme Court granted the writ and said:

The appointment of receivers for any of these banks would have the effect of taking out of the hands of the Governor the administration of

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