In my opinion, the judgment should be affirmed. *Page 192
While our constitution announces that its provisions are mandatory unless by express words they are declared to be otherwise, the legislature is not thereby divested, as we have many times held, of authority to enact statutes regulatory of the procedure for obtaining the rights guaranteed by our constitution.
By § 22, Article I, of the constitution, the defendant is guaranteed in a criminal prosecution the right, which he did not have at the early common law, to compulsory process to compel the attendance of witnesses in his own behalf. The defendant is also guaranteed the right of appeal.
It is not necessary to cite authority in support of the statement that the requirement of giving notice of appeal within a stated period is constitutional. Nor have we ever held unconstitutional the statute providing that the statement of facts shall be served within a prescribed time, otherwise it will not be considered. The failure to give notice of appeal within time results in dismissal of the appeal. If the rule or statute for serving and filing the statement of facts is breached, the penalty is the striking of the statement of facts. Without a statement of facts, an appeal in a criminal action would seldom be of value.
If the legislature has not by such enactment deprived the defendant of his constitutional right to appeal, how can it be logically held that by ch. 150, § 2, p. 420, Laws of 1925, Ex. Ses. [Rem. 1927 Sup., § 2050], a defendant is deprived of the right to compulsory process to compel the attendance of his witnesses? In each instance, the constitutional right is subject to a reasonable procedural regulation.
The writ of habeas corpus is a writ of right. That right is more ancient than, and surely as sacred as, the right of a defendant to compulsory process to compel the attendance of his witnesses. Theoretically, the *Page 193 right to the writ is never to be denied in any case where the liberty of a person is made the subject of inquiry. Section 6, Article IV of our constitution, vests the superior courts with the power to issue writs of habeas corpus by or on behalf of any person in actual custody in their respective counties. In construing that section, which is as mandatory as any other section of the constitution, we held in the Garrison case (State ex rel. Colvin v. Superior Court, 159 Wash. 335,293 P. 986) that the legislature could so regulate the procedure for obtaining the writ as to deny to the court of the county in which the petitioner was in custody the right to inquire into the cause of custody until the petitioner had exhausted her right under the statute (Laws of 1907, ch. 30, p. 33). That is, in the face of the constitutional mandate, the court of the county in which the petitioner was in custody was denied the right to inquire into the cause of custody until the petitioner had exhausted her remedy of having the question of the legality of her confinement determined by the superior court for the county committing her in the first instance.
The act in question is either constitutional or unconstitutional. It is a play on words to say that the statute is directory and not mandatory. Such holding extracts the teeth from the statute. If there is to be no penalty, the statute is without force. The penalty, of course, is the exclusion of the testimony of the witnesses whose names have not been listed as required by the statute.
I am not in accord with the majority on another phase; that is, the superior courts have ample disciplinary powers which may be exercised to compel obedience or punish suitably counsel for the defendant for failure to obey the statute. *Page 194
I do not concede that such power inheres in any court. I cannot conceive of any court in these United States arrogating unto itself the right to punish as for contempt any attorney for failing to conform to the procedural requirements prescribed by court rule or by statute. The penalty for the attorney's failure to properly proceed is, of course, visited upon his unfortunate client. If failure to furnish the prosecuting attorney with a list of the defendant's witnesses could be punished by fine or confinement as for a contempt, it would be only a step for the court to exercise such disciplinary power to thus penalize an attorney for failure to give notice of appeal, or to serve and file the statement of facts within the prescribed statutory period.
The statute in question is a reasonable exercise of the legislative power. It violates no constitutional rights of the appellant. To hold that the legislature cannot compel the defendant to serve upon the prosecuting attorney a list of the witnesses whom he intends to use at the trial, within a reasonable time preceding the trial, would be to hold that the legislature is powerless to regulate criminal procedure; and we have heretofore held that that is within the legislative province.
HERMAN, J., concurs with MILLARD, J. *Page 195