(dissenting) — I concur in the dissenting opinion of Justice Stafford and would say more..
I fully support the position expressed by Justice Hale in his dissent to Iverson v. Marine Bancorporation, 83 Wn.2d 163, 517 P.2d 197 (1973), and express the same concerns which were there expressed about the very constitutionality of this court’s action.
In addition I would direct particular 'attention to the problem of waiving a cost bond. The origin of the right to a cost bond is statutory (Laws of 1893, ch. 61, § 6, p. 122) and has been carried into the court rules through the legislation which granted to the Supreme Court of this State the right to make rules regulating pleading, practice and procedure (Laws of 1925,1st Ex. Sess., ch. 118, § 1, p. 187).
Though provision for a cost bond be now governed by rule rather than statute, it seems self-evident that the right to a cost bond is substantive in its nature and a contingent property right of a successful party litigant. Such a, bond is quite different in nature from the right of the State of Washington to charge a fee for access to the court. It being a right of the party and not of the State itself, I question the power of the court to waive it.
The rationale of the concurring majority opinion12 begs the question. In the case at bench the State is a litigant as well as the provider of the forum and should be accorded the same rights and security as any other litigant.
If the right to a cost bond be substantive, the majority suggestion that the remedy for the loss of security is to be recompensed by submission to the legislature of a private bill for relief is not only illusory, but itself a patently unlawful proposal. It is generally recognized that private property, be it real or personal, may not be appropriated even for public purposes without payment of just compen*408sation. 3 P. Nichols, Law of Eminent Domain § 8.1 (2) (3d ed. 1974); 1 P. Nichols, Law of Eminent Domain § 2.1 (2) (3d ed. 1974).
I know of no cases which hold that the right to ask the legislature for relief through a private bill is the equivalent of just compensation, and indeed, the suggestion is inconsistent with the general rule that compensation must be in money and must be unconditional. 3 P. Nichols, Law of Eminent Domain § 8.3 (3d ed. 1974).
Further, I am unable to accept as valid one of the basic premises of both O’Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969) and Iverson v. Marine Bancorporation, supra.
Fundamental to the reasoning of those decisions is the concept that because the court makes the rules, it can waive them. This is the essence of the rule of man rather than the rule of law, and in the assertion of this power, the court in my opinion, is resorting to the. same tactics as those by which Henry IV achieved the throne of England.
At a time when this court took a more restrained view of the limits of its powers, the court said in State v. Currie, 200 Wash. 699, 94 P.2d 754 (1939), at 707:
Finally, although the matters with which we are dealing are embraced in what we call a rule, it is that kind of a rule which has all the force of a statute, since it was promulgated at the direct command of the legislature “to promote the speedy determination of litigation.” It is true that, the court has the power to change and rewrite the rule, but that is a very different thing from excepting a particular individual from its operation or excusing its violation in a particular instance. That, the court has no power to dol
Even with subsequent relaxation arising in selected capital criminal cases as reviewed in O’Connor v. Matzdorff, supra, the Currie, rule is still reasonable and workable. If the rule needs amending, it should be done through the rule-máking processes, not through the unrestrained use of exceptions in the decision-making processes of this, court *409whereby any five of nine men at any given time, and on any given occasion, can cast aside the composite efforts of this court, the members of the Judicial Council and such other aides as the court chooses to use in composing its rules and as radically alter the framework of the law for litigants as was done by the decision of Iverson v. Marine Bancorporation, supra, and now by this decision.
The majority opinion, in purporting to find a “socially compelling” reason for waiving the cost bond has evaded both the legislative and the deliberative rule-making process. In so doing it has created the perfect instrument for filling the dockets with frivolous litigation. Whether the members of this court are aware of it or not there is a philosophy expressed by some lawyers found in publicly financed law offices that if a person is indigent and wants to be heard in court he is entitled to that hearing even though the lawyer knows that the cause or defense has no merit in fact.
There is no limit to the quantity of frivolous complaints and sham defenses which can be presented when the indigent client is matched with the professionally irresponsible lawyer whose fees are paid from the public purse. The majority recognizes the problem when it suggests that a showing of indigency is necessary, together with a showing of probable merit. I suggest that the realities of the trial of cases is such that the resolution of the question of probable merit can effectively be done only in a hearing which is substantially equivalent to the trial itself. From the viewpoint of this writer, which is principally that of a trial judge, the suggested control is as ineffectual as the so-called Anders brief approach to criminal appeals. The time spent determining the presence or absence of merit approximately equals the time spent in the outright trial.
In my opinion the court should recognize that it has glaringly invaded the field of the legislature by imposing on the State of Washington a drastic change in the social structure as it relates to the processing of litigation. The *410court should forthrightly abandon its misguided position, as it did in Greene v. Rothschild, 68 Wn.2d 1, 402 P.2d 356 (1968).
The constitutional power to declare social policy and implement it with appropriate funding properly lies with the legislature, not with the court. Certainly this appears to have been the intention of the drafters of the United States Constitution.
In the Federalist No. 78, at 227 (R. Fairfield ed. 1966) (A. Hamilton), we find:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
(Footnote omitted.)
What hollow words. I dissent.
Justice Saule is serving as a justice pro temppre of the Supreme Court pursuant to Const. art. 4, § 2 (a) (amendment 38).
“In addition, the waiver of the cost bond in this case will affect an agency of the state and as such, its cost, if any, will be shared by all the people of the state.”