A. Definition

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

A. Definition

Prohibition is one of the common law "extraordinary writs" that were directed to a judge or other official to command or prevent performance of a specified action.¹

Prohibition, as the name suggests was to prohibit an "inferior tribunal"² from taking action as opposed to, for example, mandamus, which directed an official to take action.³ An interesting academic discussion could be had concerning whether an extraordinary writ is a "cause of action;"⁴ however, that discussion would indeed be academic as under modern pleading there is one form of action known as a "civil action,"⁵ and the South Carolina Supreme Court has conceded, at least by implication, the characterization of the writ of prohibition as a "cause of action."⁶ Nonetheless, the procedure governing extraordinary writs, including prohibition, is treated specially under the South Carolina Constitution and specific statutes. They give the South Carolina Supreme Court the power, under original jurisdiction, to issue writs of prohibition.⁷ The individual justices and all judges of "courts of record" have that power as well.⁸ The decision of a justice of the Supreme Court⁹ or of the Court of Appeals¹⁰ is, however, subject to appeal to the full court. The Supreme Court has limited its original jurisdiction by rule stating:

The Supreme Court will not entertain matters in its original jurisdiction when the matter can be determined in a lower court in the first instance, without material prejudice to the rights of the parties. If the public interest is involved, or if special grounds of emergency or other good reasons exist why the original jurisdiction of the Supreme Court should be exercised, the facts showing the reasons must be stated in the petition with supporting affidavits.¹¹

The history, nature, and purpose of the writ was explained at some length in the oft-cited decision of the South Carolina Supreme Court of Ex parte Jones.¹² The court said:

The ancient prerogative writ of prohibition has been recognized and employed in the common-law system of jurisprudence for more than seven centuries, and like all prerogative writs should be used with forbearance and caution, and only in cases of necessity. It is primarily a preventive process, and is only incidentally remedial. It was originally designed to perfect the administration of justice and for the 'control of subordinate functionaries and authorities,' but its principal modern use, stated generally, is to prevent the assumption and exercise of jurisdiction by an inferior Court or tribunal in cases where wrong, damage, and injustice are liable to follow such action.
With regard to the function and scope of the writ, it has been settled in this State from an early period that it will only lie 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; but, if the inferior Court or tribunal has jurisdiction of the person and subject-matter of the controversy, the writ will not lie to correct errors and irregularities in procedure, or to prevent an erroneous decision or an enforcement of an erroneous judgment, or even in cases of encroachment, usurpation, and abuse of judicial power or the improper assumption of jurisdiction, where an adequate and applicable remedy by appeal, writ of error, certiorari, or other prescribed methods of review are available.¹³

Other courts have offered additional explication of the writ. While it may be employed to prevent improper assumption of jurisdiction, it is, the state supreme court has said, "of a more or less drastic nature" and caution should always be exercised; it should only issue where the reason for it is plain.¹⁴ The writ may only be applied to prohibit a "judicial" or "quasi-judicial" function.¹⁵ It is not a substitute for an appeal,¹⁶ and will not lie to correct irregularities or errors of law or fact,¹⁷ or to prevent an erroneous decision.¹⁸ But it may be employed to challenge the constitutionality¹⁹ or validity²⁰ of a law.

It is interesting to note that one statute of the State Commodity Code,²¹ specifically mentions a writ of prohibition. Under that statute, when a violation of the Code or a regulation or order of the South Carolina Secretary of State has been shown, the court may issue writs of prohibition or mandamus.²² When a defendant is shown to be about to violate the Code or a regulation or order of the South Carolina Secretary of State one appropriate remedy is a writ of prohibition or mandamus.²³

Applications for a writ of prohibition in South Carolina have always been rare; not surprising for an "extraordinary writ" "of a more or less drastic nature" to be used with "forbearance and caution." Since the South Carolina Reports was first published in 1868, of the reported appellate decisions in which an application for the writ was entertained, the great majority were decided between 1870 and 1910. There was a small spike in reported appellate decisions during the period of the Great Depression — mainly cases concerned with banks. However, there have been very few appellate level decisions since 1950.²⁴ The most recent mention of the writ in an appellate decision — and perhaps the only one in the 21^st Century — appears to have been in 2005.²⁵ Besides the fact that courts are reluctant to grant a writ of prohibition, there are a number of reason why it has become less common: fewer "special" courts; better educated trial judges; modern rules of civil procedure and simplified pleading; and, more, and better suited, alternatives.²⁶ Nonetheless, the writ remains a viable action and, despite the significant obstacles in obtaining prohibition, its potential should not be ignored in those unusual cases where it alone can provide the relief sought.

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Notes:

^[1] Holladay v. Hodge, 84 S.C. 91, 65 S.E. 952 (S.C. 1909) (writ of prohibition is extraordinary prerogative writ as old as common law itself). See also State ex rel. Zimmerman v. Gibbes, 171 S.C. 209, 172 S.E. 130 (S.C. 1933), aff'd, 290 U.S. 326, 54 S. Ct. 140, 78 L. Ed. 342 (1933); State ex rel. Franklin v. Raborn, 60 S.C. 78, 38 S.E. 260 (S.C. 1901) (circuit court referred to writ of prohibition as extraordinary judicial writ); State v. County Treasurer, 4 S.C. 520 (1873) (writ of prohibition...