(concurring in the result only) — The court, I think, implies much more than it says and only hints at what it has in mind. To me, the opinion conveys the idea that, even though the petitioner in habeas corpus has no right to counsel at public expense, his counsel does have an enforceable right to compensation, and that it has been denied solely because the legislature did not provide the money. Despite an acknowledgment that the state has not appropriated or authorized the appointment of counsel at public expense for inmates of penal institutions seeking release under habeas corpus, the court, nevertheless, suggests that counsel apply to the legislature for payment, and the legislature in good conscience should pay the bill. I do not concur in this recommendation. I think it a questionable expedient for this court to encourage counsel to file claims for their private relief with the legislature, particularly where the court has already declared such claims uncollectible.
*681Up to now, petitioner has been awarded a large measure of due process — at public expense. In 1963, under the advice and in the presence of his attorney, he pleaded guilty to a felony charge and was sentenced to the penitentiary. Released in 1966 on parole to the federal authorities for service of a federal sentence, he was in 1967 again released, this time from federal custody but still on state parole. Then, in August, 1967, on allegation of parole violation, the State of Washington rescinded his parole and returned petitioner to the penitentiary. In addition to the instant application for free counsel, petitioner has pending before this court his petition on the merits. Inasmuch as petitioner has been ably represented by counsel for the American Civil Liberties Union, without cost to either himself or the people of this state, I would leave matters where they now stand. If, as the opinion of the court points out, an inmate of the penitentiary has no constitutional right to counsel at public expense, and counsel has no enforceable rights to recover for his services from the state, I would not, as the majority seems to have done, judicially establish a twilight zone in the law where both client and attorney, while losing at law, prevail in fact.
The first place to look for answers to constitutional questions is in the constitution where it says that no funds can be disbursed from the public treasury except upon appropriation:
No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.
Const, art. 8 § 4 (amendment 11).
The legislature has neither authorized nor appropriated public money for compensation of counsel for inmates of *682penal institutions in habeas corpus proceedings. Despite the court’s recommendation that it do so, the legislature, in my opinion, should first make a comprehensive study of habeas corpus in this country, circa 1970, weighing the costs against the possible benefits. It may well be that, when the legislature learns of the profligate use of habeas corpus and the havoc it has wrought in the federal and state judicial systems, it may come up with remedies not yet dreamed of in the judges’ philosophy.
As the court points out, the legislature has already looked into the question of due process of law in criminal cases and appropriated public funds to pay for appointed counsel in criminal appeals, i.e., on behalf of an individual criminal defendant and then only from funds specifically appropriated by the legislature for that purpose. RCW 10.01.112. This section does not contemplate or permit furnishing counsel at public expense in civil cases. The legislature made it clear that it appropriated no money for noncriminal cases, including habeas corpus, and there exists no basis in law for making disbursements for that purpose at the present time.
Nearly all good things are subject to bad usage — including the writ of habeas corpus. Evolving ás a device to liberate individuals held without authority of law, it has become, I think, by a process of judicial contortion, scarcely recognizable except for its name. Persistently proclaimed by the courts as no substitute for appeal, the writ, through a series of judicial mutations, has, nevertheless, become exactly what it is said not to be, a belated writ of appeal which now not only usurps to a serious degree the orderly and timely processes of appeal but has developed into a mechanism with which to bedevil, overburden and frustrate the orderly administration of the criminal' law. Frequently characterized as the great writ, contemporary employment of it, I think, permits its label as the colossal writ or, perhaps more aptly, the universal writ. It can be made to serve the most frivolous and preposterous demands, and there is no end to it. Already out of hand, in my opinion, *683the writ of habeas corpus is expanding so that the day is not far off when it may oust most writs known to the law, including perhaps that of garnishment.
Despite this runaway growth, there is one thing habeas corpus has not become — it is not a criminal proceeding. A criminal prosecution is a proceeding brought by the state or political subdivision in its own name for redress of a public offense. When petitioner, as an inmate of a penal institution, brings a suit against his wardens for the purpose of obtaining his discharge from confinement, he is not acting as a prosecuting attorney. Even the most enthusiastic exponents of habeas corpus among the judiciary must concede, I think, that the writ — however enlarged — cannot sensibly be expanded to embody among its attributes those of either a criminal complaint, information, presentment of a grand jury, or bill of indictment, or to vest in the petitioner the powers of a state’s attorney heretofore exclusively reserved to qualified representatives of the sovereign. Petitioner initiated this petition; he may dismiss it if he chooses. He represents neither the state nor the people nor others. His stated grievance is personal to himself, in quest of a decree personal to himself.
Although I agree that occasionally such labels in law as civil or criminal may be misleading and ought not be an exclusive basis upon which to rest a rule, they are frequently a vital determinant. If the right to free counsel depends on whether one is defending a criminal charge or prosecuting a civil remedy, a sound classification of the kind of action is a vital precondition to enforcing the right. Calling a banana an orange, for example, simply because they are both classified as fruit, would be misleading where the applicable rule affects only one or the other and not both.
In nearly all habeas corpus petitions emanating from penal institutions, the petitioner is collaterally attacking a formal judgment of a court of competent jurisdiction, valid on its face and applicable particularly to the named petitioner. That judgment, unappealed from or affirmed on ap*684peal, during the term of imprisonment set forth should ordinarily, as a matter of law, constitute a good and sufficient answer to such petitions. Although Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R. 2d 733 (1963), frequently cited in what I consider the wanton employment of habeas corpus, does not report whether the judgment and sentence under attack affirmatively showed on its face a denial of counsel, the trial record did show a categorical demand for and a categorical refusal by the court to appoint counsel. Gideon, I think, holds no more than that a court is constitutionally without jurisdiction to impose a sentence for felony unless counsel has been waived, retained or appointed — a rule of undoubted constitutional law obtaining in this jurisdiction since 1854.
In the present case, the court acknowledges that petitions for habeas corpus coming out of our penal institutions are frequently frivolous, but I would point out further that such frivolity is neither carefree nor casual but extremely burdensome. It would be a good idea that legislatures and courts, knowing of this frivolity, undertake soon to devise fair but speedy and economical procedures for identifying the few claims which have substance to them and quickly dispose of those which are frivolous and without merit.
It is good that the constitutions be regarded as living charters, adaptable to changing times and conditions and that the writ of habeas corpus be recognized as an effective and useful writ in the preservation of individual freedom. And I would permit the writ to adapt to the times for change is an inexorable rule of life, and the law, as with nearly everything else, is caught up in it. But a change in the law should come about through rational and orderly development and shaped to meet the apparent needs of the individual and of an everchanging society.
Change in law may be good or it may be intrinsically bad. If it happens by accident rather than design, it will as in nature more likely be bad than good. Thus, the law should not be allowed to suffer by accident the kinds of mutations which, developing spontaneously in nature, in so *685many instances turn out to be bad. In considering life and growth and change in law as well as in nature, one should not forget that cancer is a living and growing organism, too.
The damage inflicted on the judicial systems and thus upon the people of this country through judicial acceptance of the profligate employment of habeas corpus stems, in my view, from six distinct abuses and distortions of the writ:
1. The courts have erroneously allowed habeas corpus to become a substitute for a writ of appeal.
2. Habeas corpus has been proclaimed free of res judicata — a mistaken assumption that permits it to be litigated over and over again upon the same or different grounds.
3. The writ fosters a riotous duality between federal and state systems; it is frequently employed in one judicial system to review the judgments of another.
4. It has developed into a kind of perpetual postconviction, postappeal proceeding and as a wanton alternate for a postconviction remedial statute.
5. The writ now prevents finality in criminal judgments.
6. It is costly to the people, preempting a part of their treasury which could be put to better use.
These ideas, considered in greater detail, give rise to the following propositions:
1. Despite rock-bottom authority to the contrary, the writ of habeas corpus has in practice developed into a substitute for a writ of appeal. A seemingly inexorable process of judicial application has so distorted the writ that a convicted prisoner can now waive his constitutional right to appeal, wait until crucial witnesses against him are dead, dispersed, rendered incompetent by time, or placed in fear by the law’s demonstrated inability to cope with dangerous criminals, and he may then employ the writ in both state and federal courts to relitigate the facts and constitutional premises upon which his conviction rested.
2. Next, although habeas corpus and other writs like it such as coram nobis are explicitly civil writs, the doctrine of res judicata, which universally applies to all civil and, *686indeed, criminal cases as well, for some curious reason is said to have no application to it. Under current notions of constitutional due process, a prison inmate can file one petition for habeas corpus after another raising the same points repeatedly, or he can employ a stretch-out method and add a new claim to each succeeding petition ad infinitum. The courts give the nation and its component sovereign states no relief from this costly and debilitative form of harassment and the people no protection against this continual drain on their treasury. Nowhere, so far as I have been able to ascertain, has the profligate waste of public moneys and legal, judicial, police and administrative manpower engendered by this form of juridical perpetual motion been genuinely relieved by either the courts or legislatures.
3. The writ has created an ambivalence between the two judicial systems. Federal and state judiciary which once operated in reasonable harmony side by side now overlap, trespass upon and conflict with each other at all levels, largely, I think, because of the judiciary’s inability in both systems to administer properly the writ of habeas corpus. The endless tug-of-war in criminal cases and habeas corpus proceedings between federal and state courts has, in my judgment, developed into a grave jurisdictional conflict and seriously endangered the public safety. Although in the field of commerce competition is said to be the life of trade, that maxim has little validity in the field of jurisprudence. When the law puts two vigorous judicial systems for the administration of criminal justice into competition and conflict with each other, the two forces are more apt to be disintegrating than strengthening. Thus, the writ of habeas corpus, a civil remedy now unfortunately tolerated as a substitute for appeal, has, I think, become a disintegrating force in the administration of the criminal law in the country. Under its present baneful usage, the wheels of justice can be and frequently are brought to a grinding halt as criminal cases shift back and forth at all levels between the federal and state systems. I would not disparage nor abridge the writ, but I would not let it run rampant either. *687It should be restored by the courts to its formerly effective but sensible role unless, of course, the people through their legislative assemblies deliberately enlarge its offices by statute.
iThe writ should not be allowed as a substitute for appeal nor be relieved of the commonsense application of the rule of res judicata. With the plethora of due process now available — mostly at public expense — to anyone accused of crime, there is no reason why poor men and rich men alike should not be required to raise their claims of error on appeal and be held to have waived them if they do not do so. How or why the rule emerged that there is no limit to the number of times one can litigate the same or similar issues in a civil case is beyond comprehension.
I see no danger to individual freedom and much good to our free society if the writ is shorn of some of its now ephemeral qualities. Rare indeed is the case today where the accused in a felony prosecution has not been offered and has not utilized an abundance of due process before resorting to habeas corpus. He may first be taken before a justice of the peace or committing magistrate where he is advised of his constitutional rights and whatever additional privileges he may be said to have under Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), or, he may be charged directly by information or indictment. In either case, if he is without funds, counsel will be appointed for him at public expense.
When the complaint in justice court is superseded by information or indictment and the accused comes before the superior court for arraignment, counsel is appointed or existing counsel confirmed to serve at public expense, and the accused is allowed time to consider his plea. If he pleads not guilty to the charge but additionally not guilty by reason of mental irresponsibility, the court, at public expense, furnishes him with experts in the field of psychology and psychiatry to aid him in his defense. The State of Washington thus supplies the accused throughout all stages of a criminal case with professional assistance.
*688But due process has then just begun. It takes the unanimous concurrence of 12 jurors to find the defendant guilty and next he may move for a new trial or in arrest of judgment — and all professional services employed in these proceedings will be paid for by the public or required of the bar without compensation. Then, he may exercise his constitutional right to appeal and the public will supply him at the current rate of $1.20 per page with a verbatim record of such parts of the trial as may be relevant to any points on appeal he intends to raise. And the public pays his counsel to write his brief and argue his case on appeal, either to a court of appeals intermediately or to the highest court in the state, or perhaps both. The public also pays all typing and printing costs and the counsel’s travel expense to and from the court where the appeal is argued.
But that is not the end of the due process of law afforded the accused. If his conviction is affirmed, he may seek a review by the Supreme Court of the United States, proceeding directly from the state court which affirmed his conviction on appeal. If the Supreme Court denies the application for review, or on review affirms the state court which heard the appeal, one would think that this would be an end to the case and that the accused had been afforded the full process of law due him. At that point, it would seem that the case had been fully and finally litigated and that the judgment had become final, and that the state had fully afforded the accused due process of law.
Such a surmise, however, would prove mistaken in the light of everyday experience, for with the denial of certiorari by the Supreme Court of the United States, the endless processes of habeas corpus begin. We reach not the end but a beginning — the beginning of a new and seemingly endless cycle of reviews. After denial of certiorari, the convicted felon can proceed by habeas corpus into the District Court of the United States and there litigate the very facts upon which his conviction was founded and affirmed by the highest courts of the state and the Supreme Court of the United States. He may also take a side trip simultaneously back *689into the state courts by way of habeas corpus in the interest of exhausting state remedies. If a 1-judge federal district court makes a finding of fact in a habeas corpus proceeding that relief be allowed, that court, in the alternative, may order a new state trial or direct that the very judgment and sentence once affirmed on appeal by the highest court of the state and refused review by the United States Supreme Court be set aside and abrogated and that the petitioner be set free.
Although the state may appeal this decision, an appeal frequently gives rise to ineluctable and insoluble problems: Will the normal fears engendered among witnesses by the seeming impotence of our courts to deal with dangerous criminals shape their testimony? Will key witnesses or their lapsing memories survive the delays? Will time destroy or seriously deteriorate critical evidence? The state is put to a difficult choice, for it is no easy matter to determine so long after the trial whether to appeal the order in habeas corpus granting a new trial or to accept the district court decision and proceed with a new trial which on two or three earlier occasions had been denied by the highest courts.
But even if the federal district court denies habeas corpus relief and refuses a new trial, that does not end the matter. When the district court dismisses or denies the petition, the convicted felon, whose conviction has already been once, twice or thrice affirmed, may then appeal to the court of appeals and thence to the Supreme Court of the United States again arguing grounds which could well have been asserted at his trial and urged in his appeals years earlier. At this juncture with the second denial of certiorari by the United States Supreme Court, one would at long last conclude that due process of law would have been fully accorded the accused and he would settle down to a full acceptance of his fate.
But again this would be a mistaken surmise. The petitioner may repeat the whole process in both the state and federal court systems again and again ad infinitum, resur*690reeling old or asserting new grounds each time, confident in the knowledge that the ancient rule of res judicata covering not only those things which were raised but which could and should have been raised ab initio do not apply. He may proceed first by habeas corpus on a new point in the superior court where the penitentiary is located, then by appeal to the state court of appeals or to the state supreme court, then by certiorari again to the Supreme Court of the United States, then back down to the District Court of the United States and up again to the Court of Appeals and thence to the Supreme Court of the United States again. If a zanier system for the administration of criminal justice has been devised or evolved elsewhere, it is a state secret.
4. The fourth defect in current employment of habeas corpus, as I see it, is that it is regarded by some courts as a necessitous kind of postconviction remedy — a fallacy which, in my judgment, creates an inexplicable and mischievous paradox in the criminal law. The very expression “postconviction” remedy seems to me to be a contradiction in terms. If by conviction is meant final conviction in a court of competent jurisdiction and one affirmed on appeal, then, or course, there are no remedies other than those already exhausted in reaching judgment, sentence and affirmance. But if the conviction sought to be remedied retroactively is the judgment and sentence of a trial court only and appeal has been waived, then the only postconviction remedies available in the courts that I can think of are petition to the trial court for probation and suspension of sentence or to the Governor for executive clemency by way of pardon. If there are to be such things as postconviction remedies other than probation, pardon, appeal and review, the legislature, not the courts, should provide them.
Habeas corpus, in my judgment, therefore, was never intended to and ought not operate as a postconviction remedy. Our judicial system, along with the presumption of innocence, accords a strong presumption of validity to the unappealed from judgment of the superior court and when *691the conviction is affirmed on appeal this presumption of validity should, except in the rarest instances, be conclusive unless vitiated by the Supreme Court of the United States on direct application for review of the conviction. Once the process of appeals has been completed, the litigation should end. The constitutions provide for no other remedies and the courts should not invent superfluous ones but instead leave it to the legislature to afford convicted felons whatever further relief the people feel ought to be granted.
5. The writ of habeas corpus has now grown to colossal proportions, operating to deprive the criminal law of what has been traditionally deemed an indispensable ingredient for the effective administration of justice — finality of judgment. Most everyone seems to agree that there is particular virtue in speedy trials, early reviews and final judgments, but very few have come up with any clear ideas of how to achieve them. Finality of judgment once thought to be the sine qua non of a stable judicial system is now in the field of criminal law no more than a phantom, excitedly pursued but rarely caught. I do not advocate finality at the price of due process of law, but rather in consonance with and as one of the elements of it. When a judicial system never lets the judgment become final, it gives no judgment at all. What is called a judgment and sentence becomes no more than an unenforceable transitory expression of a point of view judicially expressed.
And what of the convicted felon who has come to believe his conviction is based on no more than an evanescent judicial declaration? If rehabilitation of criminal offenders and their early restoration to society be the goal of the penal system, how can a prison inmate be psychologically amenable to the rehabilitative processes available to him in a penal institution while at the same time prosecuting petitions over and over again which assert he has been unlawfully and illegally convicted?
6. Finally, I think one should not overlook the costly drain upon the public treasury and waste of time, energy *692and talent engendered by the abuse of habeas corpus. The countless investigations, interviews, hearings, remands, trials, briefs, arguments, appeals, court orders and judicial opinions when viewed panoramically across the nation will, I think, show the total burden upon the whole judiciary, state and federal, to be so enormous as to demonstrate that the writ of habeas corpus has grown out of hand and that the judicial systems have thus far lacked the ingenuity to administer it properly. For recent discussions of habeas corpus, read 57 Ill. B. J. 634 (April, 1969); 14 Catholic Lawyer 293 (Autumn, 1968); and 15 How. L. J. 200 (Winter, 1969).
I do, therefore, concur only in the result of the opinion to the extent to which it holds that there is vested in the superior court as a court of nearly unlimited jurisdiction an inherent discretionary power to appoint counsel in extraordinary cases to serve without recompense in prosecuting a petition for habeas corpus on behalf of an inmate of a state penal institution where, on the face of the petition, there appears good reason to believe it meritorious and that relief under the writ could well be granted. I must earnestly disagree with the remainder of the majority holding which I fear will add but another tortuous channel to the labyrinthine maze of proceedings now open to a convicted felon whose case has already been repeatedly reviewed.