Leschi Improvement Council v. Washington State Highway Commission

525 P.2d 774, 84 Wash. 2d 271

• Court: Washington Supreme Court
• Decided: December 10, 1974
• Docket: 42766
• Status: Published

Opinions

Utter, J.

— This is an appeal from a judgment dismissing an action to review a hearing relating to issues of limited access and design of a limited access highway conducted by the Washington State Highway Commission. The purpose of the hearing was to establish that segment of Interstate Highway 90 (I-90/SR90) which extends from the west shore of Mercer Island to the point where the highway will intersect with Interstate Highway 5 in Seattle, as a limited access facility.

The plaintiffs/appellants allege they are abutting property owners entitled to review of the Highway Commission’s findings and order pursuant to the express provisions of RCW 47.52.195, limiting review of such findings and order to “an abutting owner.” The petitioners/appellants, on the other hand, challenge the findings and order insofar as it relates to the overall design of the highway not related to limited access questions through a petition for a writ of certiorari. They concede they are not abutting property owners entitled to review under RCW 47.52.195, but allege they are directly affected by noise and air pollution from design defects of the proposed highway. They seek to review the applicability of the provisions of the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, and 47.04.110-.130 to the proceedings to establish the limited access highway.

In the area of design, RCW 47.52.131 provides that when a state plans a limited access facility through a county or an incorporated city or town, it shall give careful consideration to the counties’ or cities’ comprehensive plans, land use patterns, present potential traffic volume of county roads and city streets crossing the proposed facility, origin and destination traffic surveys, existing utilities, the physical appearance the facility will present, and other pertinent surveys, and shall present to the city or county a report showing how these factors have been taken into account and how the proposed facility will serve public convenience and necessity.

Petitioners and plaintiffs allege two errors in the conduct of the hearing. They argue that all witnesses were not sworn as required by RCW 47.52.135 and that the Department of Highways had not prepared, nor had the Highway Commission considered, an adequate environmental impact statement.¹

The respondents challenged the standing of both plaintiffs and petitioners to seek review, contending that none of them was an abutting owner within the meaning of RCW 47.52.195, and that the statutory provision limiting review to abutting owners is exclusive for all issues in this case. The trial court held that the plaintiffs are not abutting owners who have a right to judicial review under the limited access statute but concluded that the petitioners have a right to obtain review of the proceeding by certiorari insofar as the applicability of SEPA is concerned because they are affected by noise and noxious fumes emanating from the motor vehicles which use the highway. The court also found the environmental impact statement complied with the requirements of SEPA. We affirm the trial court.

Petitioners complain that all witnesses at the hearing were not sworn as required by RCW 47.52.135. The general rule is that objections or questions which have not been raised or urged in the proceedings before the administrative agency or body will not be considered by the court on review of the order of such agency or body. State ex rel. Northeast Transp. Co. v. Abel, 10 Wn.2d 349, 116 P.2d 522 (1941). The petitioners made no objection to the procedure followed at the limited access hearing in permitting members of the public to speak without being placed under oath. A claim that an administrative agency has admitted evidence which was improperly taken cannot be reviewed by the court unless there was an objection at the time it was taken or a motion to strike it out. Great Northern Ry. v. Department of Pub. Works, 137 Wash. 548, 242 P. 1092 (1926).

The petitioners have standing to bring this action on a basis other than the language of the limited access act. There is substantial evidence in the record to support the trial court’s finding that petitioners are adversely affected by the noise and noxious fumes from the proposed highway and, as persons directly affected, they therefore have standing to raise the SEPA issues. Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973).

The applicability of SEPA to existing authorizations of all branches of government of this state does not open the door to irresponsible use of the provisions of SEPA to unjustly delay projects. Laws of 1973, 1st. Ex. Sess., ch. 179, § 2 established a procedure which sharply curtails belated challenges to governmentally approved private projects where there is a question about the noncompliance with the provisions of SEPA. Failure to start action within 60 days of final publication of notice of a major action significantly affecting the quality of the environment, published in proper form, bars an action to set aside, enjoin, review or otherwise challenge any such action of a governmental agency with respect to any private project on grounds of noncompliance with SEPA.

Under the same circumstances, the failure to timely proceed on grounds of violation of the provisions of SEPA against government projects can be a bar to such suits by application of the doctrine of laches. New York v. United States, 337 F. Supp. 150, 160 (E.D.N.Y. 1972), further proceedings, 344 F. Supp. 929 (E.D.N.Y. 1972); Clark v. Volpe, 342 F. Supp. 1324 (E.D. La. 1972), aff’d, 461 F.2d 1266 (5th Cir. 1972). Application of the doctrine of laches is on a case-by-case basis. Where a public project has not progressed to the point where the costs of altering or abandoning such a project would certainly outweigh the benefits of the application of environmental concerns over preservation of the ecology, a court has refused to bar a suit by application of the doctrine of laches. Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323 (4th Cir. 1972). Here the suit was brought on February 19, 1971, and the applicable statutes were in effect on January 1, 1970. The court sought to balance the public interest in the outcome of the suit against the harm caused by delay in bringing the suit.

The petitioners here have standing to raise SEPA issues in proceedings that are initiated under RCW 47.52 because the provisions of SEPA are engrafted onto the existing statutory authorizations. (RCW 43.21C.060)

In Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm’n, 449 F.2d 1109, 1112 (D.C. Cir. 1971), the court commented on the effect of similar language in the National Environmental Policy Act (NEPA).

NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department. The Atomic Energy Commission, for example, had continually asserted, prior to NEPA, that it had no statutory authority to concern itself with the adverse environmental effects of its actions. Now, however, its hands are no longer tied. It is not only permitted, but compelled, to take environmental values into account. Perhaps the greatest importance of NEPA is to require the Atomic Energy Commission and other agencies to consider environmental issues just as they consider other matters within their mandates.

(Footnote omitted.) The prime sponsor of NEPA, Senator Henry M. Jackson, stated: “The bill specifically provides that its provisions are supplemental to the existing mandates and authorizations of all Federal agencies. This constitutes a statutory enlargement of the responsibilities and the concerns of all instrumentalities of the Federal Government.” 115 Cong. Rec. 19,009 (daily ed. July 10,1969).

The concern of the legislature regarding application of environmental legislation to existing laws relating to the highway department is emphasized by the fact that two separate laws stressing environmental concerns are applicable to them. RCW 47.04.010-.130 specifically applies to every case where a state highway is to be constructed in a new location or where a state highway resconstruction project will require additional right-of-way. These sections further provide that if one or more hearings have occurred prior to the effective date of the act that the department shall prepare an environmental report prior to conducting the next public hearing. RCW 47.04.120. Under this statute the areas the report is to consider are identical to those set forth in SEPA, RCW 43.21C.030 (2) (c) (i) - (v).

SEPA, as well, is applicable by its specific terms where it directs that, “to the fullest extent possible: (1) The policies, regulations, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter . . RCW 43.21C.030. SEPA further directs that “The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies . . .” RCW 43.21C.060.

Respondents concede SEPA is applicable to the Highway Commission’s findings and order and that adoption of the access plan must be regarded as an action significantly affecting the quality of the environment. As such, SEPA requires the commission at that stage to consider a detailed statement on

(i) the environmental impact of the proposed action;

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;

(iii) alternatives to the proposed action;

(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;

RCW 43.21C.030 (2) (c) (i)-(v).

These considerations are focused on different concerns and are much more detailed than the provisions of RCW 47.52.131 of the limited access act.

Inasmuch as predominantly highway concerns are the subject of the limited access act, it may be a proper interpretation of legislative intent to restrict an appeal to the courts under the terms of the act, prior to SEPA, to private parties. The act limits its application to parties whose property abuts upon an existing road or street to which access is proposed to be limited. Under SEPA, however, as applied to that act, far broader questions of environmental impact, identification of unavoidable adverse environmental effects, choices between long- and short-term environmental uses and identification of the commitment of resources are presented. The determination of whether these issues are adequately presented for consideration is not within the contemplation of the provisions governing appeal from the determinations of the highway authority, RCW 47.52.137, or of the board of review, RCW 47.52.150. It is not reasonable for the State to assert the petitioners’ right of review bycertiorari of SEPA issues is circumscribed by a statute passed before the enactment of SEPA and dealing with a much more narrow range of issues.

In State ex rel. Dupont-Fort Lewis School Dist. 7 v. Bruno, 62 Wn.2d 790, 384 P.2d 608 (1963), we recognized the dual nature of this court’s exercise of its power to grant a writ of certiorari. On the one hand is the recognized judicial approach to reviewability of administrative actions revolving around non judicial functions which do not involve an alleged violation of fundamental rights and which potentially involve the exercise of administrative discretion. Okanogan County School Dist. 400 v. Andrews, 58 Wn.2d 371, 363 P.2d 129 (1961). There we said we would adhere to the limitations of judicial review imposed by RCW 7.16.040.²

On the other hand, we have held in State ex rel. Cosmopolis Consol. School Dist. 99 v. Bruno, 59 Wn.2d 366, 367 P.2d 995 (1962), pursuant to article 4, section 6 (amendment 28) of the Washington Constitution that whether or not the administrative function of an agency could be characterized as discretionary and nonjudicial, our courts possessed constitutional and inherent power to review illegal or manifestly arbitrary and capricious action violative of fundamental rights. In Dupont, at page 794, we recognized in the earlier Cosmopolis case an accepted judicial approach to reviewability of administrative actions which, though discretionary and functionally nonjudicial, could, if illegally or arbitrarily and capriciously exercised, do violence to fundamental rights. As Justice Hamilton stated:

The essential touchstone, impelling invocation of the inherent or constitutional power of judicial review of nonjudicial administrative action, is the basic nature and extent or magnitude of the right involved coupled with the patency and character of the alleged violation.

The inherent power of constitutional review under these circumstances was again restated in State ex rel. Hood v. State Personnel Bd., 82 Wn.2d 396, 511 P.2d 52 (1973).

An illegal act, in the context of administrative agency action, is an act which is contrary to statutory authority. Mobil Oil Corp. v. Reynolds, 202 Kan. 179, 446 P.2d 715 (1968). Where an administrative agency fails to have before it, as required, an adequate environmental impact statement when it enters its findings and conclusions, it acts illegally, contrary to the statutory authority of our State Environmental Policy Act of 1971, RCW 43.21C. Such agency fact-finding without benefit of an adequate impact statement violates the procedural process created by the legislature to protect each person’s “fundamental and inalienable right to a healthful environment.” RCW 43.21C.020 (3).

Petitioners seeking a writ of certiorari in superior court who make an adequate showing that they will be adversely affected by proposed administrative agency action and who allege that an administrative agency made factual findings and entered conclusions based on an inadequate environmental impact statement, which the law requires, have standing. They have standing to seek the writ precisely because they raise the question whether a nonjudicial administrative agency “acted illegally . . . violative of fundamental rights.” State ex rel. Hood v. State Personnel Bd., supra at 401; State ex rel. Dupont-Fort Lewis School Dist. 7 v. Bruno, supra; State ex rel. Cosmopolis Consol. School Dist. 99 v. Bruno, supra.

The right of petitioners affected to a “healthful environment” is expressly recognized as a “fundamental and inalienable” right by the language of SEPA. The choice of this language in SEPA indicates in the strongest possible terms the basic importance of environmental concerns to the people of this state. It is a far stronger policy statement than that found in the National Environmental Policy Act which reads only that “The Congress recognizes that each person should enjoy a healthful environment . . .” 42 U.S.C. § 4331(c).

Although SEPA was not enacted until after the commission held its hearings on the limited access highway, SEPA nonetheless is applicable in this case. The commission’s findings were not entered until after SEPA was enacted, and therefore the requirements of SEPA are applicable to the Highway Commission’s findings and order, as respondents concede. Under SEPA an adequate environmental impact statement must be made available to the commission before it enters its findings and order. RCW 43.21C.030 (2) (c).

The comprehensive review envisioned by SEPA is to be “ ‘detailed’ and does not invite a lackadaisical approach.” Eastlake Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 494, 513 P.2d 36 (1973). We cannot agree with respondents’ contention that SEPA is to be construed less strictly than NEPA. Our responsibility in construing an act is to construe a statute with reference to its manifest purpose. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972). This state’s act is far more emphatic than NEPA in its legislative statement of purpose of the importance to this state’s citizens of a healthful environment, as we have previously discussed. We cannot, consistent with legislative intent, give SEPA a less restrictive interpretation.

We note that two trial courts have ruled differently on the adequacy of the same impact statement. The rulings differ in the King County Superior Court case here on review and the Federal District Court’s opinion in a parallel and related proceeding. See Lathan v. Volpe, 350 F. Supp. 262 (W.D. Wash. 1972). It is possible for each to reach different conclusions based on the same facts. The Federal District Court was construing NEPA as supplemented by a Department of Transportation Policy and Procedure Memorandum³ and was also required to rely upon established federal guidelines⁴ SEPA, upon which the King County Superior Court relied, was not extended by such guidelines as of the date the Department of Highways entered its findings and order, and we are unable to say whether their impact statement would have been different had these, in fact, existed.

The trial court examined the statement and found “The final environmental impact statement (exhibit 2) contained a detailed statement by the Washington State Highway Commission, Department of Highways, in conformance with the provisions of RCW 43.21C.030 (2) (c).”

This finding by the trial court raises questions on review here as to (1) what standards of review are appropriate to a trial court examining the record of an administrative agency before it on a writ of certiorari, and (2) what standards this court shall use to review the findings of the trial court.

Nearly half a century ago Mr. Justice Frankfurter observed with concern the increasing body of unreviewed “law” emanating from administrative agencies: “The control of banking, insurance, public utilities, finance, industry, the professions, health and morals, in sum, the manifold response of government to the forces and needs of modem society, is building up a body of laws not written by legislatures, and of adjudications not made by courts and not subject to their revision.” Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614 (1927).

We look to the Washington Administrative Procedure Act, RCW 34.04, for guidance in setting out standards for review of administrative agency action. As stated in RCW 34.04.130(6) (d): “The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: . . . (d) affected by other error of law ...”

This court has said that judicial review of findings of fact made by administrative agencies is limited to a determination of whether the administrative findings are clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order. Ancheta v. Daly, 77 Wn.2d 255, 461 P.2d 531 (1969); Farm Supply Distribs., Inc. v. State Util. & Transp. Comm’n, 83 Wn.2d 446, 518 P.2d 1237 (1974). This distinction between “questions of law” and “questions of fact” was commented on by Mr. Justice Brandéis in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 80 L. Ed. 1033, 56 S. Ct. 720 (1936):

The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly. . . . But supremacy of law does not demand that the correctness of every finding of fact to which the rule of law is to be applied shall be subject to review by a court. If it did, the power of courts to set aside findings of fact by an administrative tribunal would be broader than their power to set aside a jury’s verdict. The Constitution contains no such command.

The clearly erroneous test is, of course, not applicable to the review of questions of law.

In the context of the review of administrative determinations, the practical method of distinguishing questions of law from questions of fact by classification of the cases is stated by Judge Friendly in NLRB v. Marcus Trucking Co., 286 F.2d 583, 590-91 (2d Cir. 1961). The question of whether application of established legal standards to raw evidentiary material is a question of law or fact is an old one. O. Holmes, Jr., The Common Law 126 (1881); L. Thaga, A Preliminary Treatise on Evidence at the Common Law (1898). “The cases presenting the issue . . . seem to fall into three major groupings, although, as would be expected, the lines between them are fuzzy: ” NLRB v. Marcus Trucking Co., supra at 590.

The first major group consists of “[c]ases . . . where the chief problem is the propriety of an administrative conclusion that raw fact's, undisputed or within the agency’s power to find, fall under a statutory term as to whose meaning, at least in the particular case, there is little dispute;” The second is “[cjases where there is dispute both as to the propriety of the inferences drawn by the agency from the raw facts and as to the meaning of the statutory term . . The third category is that of “[cjases where the only or principal dispute relates to the meaning of the statutory term . . .” NLRB v. Marcus Trucking Co., supra at 590-91. Generally, cases in the first category present questions of fact, those in the third category questions of law, and those in the second mixed questions of law and fact.

An additional approach to the question-of-fact/question-of-law issue may be characterized as the analytical approach. In NLRB v. Marcus Trucking Co., supra at 590, Judge Friendly quoted Professor Jaffe’s definition of a finding of fact: “ ‘A finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect.’ ”

This view has long been a part of the common law of this state. In Cline v. Altose, 158 Wash. 119, 126, 290 P. 809, 70 A.L.R. 1471 (1930), tenant-respondents recovered money damages from landlord-appellants in a wrongful eviction action where there was no physical ouster of respondents. There it was found that the actions of the parties adequately established respondents’ right to a damage award. This court on appeal held that the finding below was not a question of fact unreviewable on appeal. We stated the “finding in favor of the respondents . . . necessarily implies that there was a constructive eviction, and the question remains whether the evidence, construed in its most favorable light, justifies the conclusion that the acts of the appellant amounted to such an eviction. This was a question of law . . . and is a question reviewable in this court. Thompson v. R. B. Realty Co., 105 Wash. 376, 177 Pac. 769.” (Italics ours.) This view is consistent with the definition of a finding of fact stated by Professor Jaffe.

The Federal Power Act § 10(a), 16 U.S.C. § 803(a) (1964), states that it is the commission’s responsibility to determine whether “the project” will or will not:

be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes; . . .

Our statute, RCW 43.21C.020 (2) (c), states that:

(2) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(Italics ours.) Neither a determination by the FPC that a project is “best adapted” nor a determination by our Highway Commission that its project allows the State and its citizens to “[ajttain the widest range of beneficial uses of the environment without degradation” is independent of or anterior to any assertion as to its legal effect.

In this case the Highway Commission made no finding as to whether the environmental impact statement before it was adequate. Such a finding, if it had been made, would have been an application of law to the facts before it and as such would have been reviewable by the trial court as a question of law. This is so because a determination of the adequacy of an environmental impact statement is not “independent of or anterior to any assertion as to its legal effect.” A determination of adequacy necessarily determines the legal rights of the parties as to the disputed project.

Courts have inherent power to adjudicate the adequacy of an environmental impact statement as a question of law, reviewable on appeal. Indeed, RCW 43.21C.090 provides that “[i]n any action involving an attack on a determination by a governmental agency relative to the requirement or the absence of the requirement, or the adequacy of a ‘detailed statement’ [RCW 43.21C.030], the decision of the governmental agency shall be accorded substantial weight.”

In Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 612 (2d Cir. 1965), the court declared that the “comprehensive plan” or “public interest” finding is ipso facto an assertion as to its legal effect. Thus, under the analytical test, the reviewing court was not bound by the basic “comprehensive plan” or “public interest” conclusion of the Federal Power Commission. Such a determination whether expressly or impliedly made was a “question of law.” Similarly, under SEPA an agency’s decision to approve a project impliedly, if not expressly, determines that the project is consistent with the citizen’s fundamental right to a healthful environment and with the legislatively mandated policy that an agency action allow to citizens the widest practicable range of beneficial uses of the environment without degradation. RCW 43.21C.020 (2) (c). These agency conclusions, either express or implied, are questions of law because they are not “independent of or anterior to any assertion as to [their] legal effect.”

Some courts have remanded to the agency its decision to allow or disallow a project because of the agency’s failure to adequately explain the basis of its decision for the reviewing court. In Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971), the District of Columbia circuit remanded a decision not to suspend the registration of DDT for further proceedings in which the administrator was to correct his failure to explain his decision and to articulate the criteria upon which it was based.

In Environmental Defense Fund, Inc. v. Environmental Protection Agency, 465 F.2d 528, 541 (D.C. Cir. 1972), the court remanded for a fuller explanation of the reasons for the refusal. The court there summed up this and its additional grounds for remand by saying, “We cannot discharge our role adequately unless we hold EPA to a high standard of articulation.” This procedure has merit in the proper case because it allows the reviewing court an opportunity to obtain a more detailed and informative record upon the basis of which to rule as a matter of law whether the environmental impact statement is adequate. It is not required, however. Trial courts may conduct additional fact finding in order to rule on the adequacy of an impact statement and either procedure may be employed by the reviewing trial court in its discretion. The role of a reviewing court would seem to be one of determining “ ‘whether the environmental effects of the proposed action and reasonable alternatives are sufficiently disclosed, discussed and that they are substantiated by supportive opinion and data.’ ” Note, The National Environmental Policy Act: What Standard of Judicial Review?, 39 J. Air L. & Com. 643, 654 (1973).

Where the superior court has applied the “clearly erroneous” test in examining administrative agency action on a writ of certiorari, on review the appellate court stands in the same position as the superior court, and applies the same test directly to the administrative action. Farm Supply Distribs., Inc. v. State Util. & Transp. Comm’n, 83 Wn.2d 446, 518 P.2d 1237 (1974).

Concerning conclusions of state law this court is the final arbiter, and conclusions of state law entered by an administrative agency or court below are not binding on this court. Baker v. Yakima Valley Canal Co., 77 Wash. 70, 137 P. 342 (1913); Harrison v. Consolidated Holding Co., 200 Wash. , 93 P.2d 729 (1939); Enterprise Timber, Inc. v. Washington Title Ins. Co., 76 Wn.2d 479, 457 P.2d 600 (1969).

Here, we cannot say, based on the record before the trial court, that the disputed impact statement fails, as a matter of law, to meet the requirements of SEPA. We therefore affirm the trial court.

Finley, Stafford, and Brachtenbach, JJ., concur.

1 RCW 47.04.110-.130 requires the Department of Highways to prepare an environmental impact report prior to the holding of its first public hearing after August 9, 1971, relating to the location or design of a new highway or alteration of a highway which will have a significant environmental impact. The limited access hearing which is the subject of this action was conducted June 19 and 21, 1971, before this statute became applicable. It happened, however, that in accordance with federal requirements (National Environmental Policy Act, 42 U.S.C. § 4321 et seq.), the highway department had compiled a statement prior to the hearing and had circulated it to interested agencies and received and considered their comments.

RCW 43.21C.030(1): “The policies, regulations, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter, and . . .”

RCW 43.21C.030 (2) (c): “Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on . . .”

RCW 43.21C.060: “Chapter supplementary. The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties.”

2 RCW 7.16.040: “Grounds for granting writ. A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.”

3 (PPM) 90-1 (1971)

4 36 Fed. Reg. 7724 (1971)