(dissenting)—Some while ago, in The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897), Mr. Justice Holmes commented:
It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind- imitation of the past.
These somewhat caustic but, curiously enough, quite reasonable and even logical observations of Holmes, J., seem to me to be relevant to the orthodox rules of our legal system designed and relied upon to regulate the activities or conduct of chronic addictive alcoholics, ostensibly for the common weal. In evaluating and disposing of the problem of the chronic addictive alcoholic, the majority opinion, in my judgment, perpetuates the same sort of legal ritualism and legalistic superficialities that prompted Justice Holmes’ above, oft-cited comment.
Some of the underlying assumptions seem to be that alcoholics are not really sick but only people who are weakwilled; that if alcoholics would muster a bit of willpower and a little personal pride they could shed their decadent and socially deplorable ways and become decent, law-abiding functionaries in our society. But such assumptions are in direct and diametric opposition to the uncontroverted and unequivocal medical testimony in the instant case. Moreover, chronic addictive alcoholism involves too many people, and its overall social implications are too important, to be accorded nothing better than tired cliches *805from yesterday’s convenient Victorian moralisms. If ever there were any social purpose for criminally punishing chronic addictive alcoholics simply for appearing in public in a drunken condition it has long since vanished; so should that way of thinking and the rules facilitating such punishment. Abraham Lincoln once said that habitual drunkenness should be “treated as a misfortune, and not as a crime, or even as a disgrace.” A. Lincoln, Charity in Temperance Reform, in 2 Life and Works of Abraham Lincoln 73, 78 (1907). I firmly believe this great American’s advice is pertinent and timely, and should be put into practice today.
The one issue before this court is whether an ordinance penalizing drunkenness in public is unconstitutional when applied to individuals afflicted with chronic addictive alcoholism. This constitutional issue involves consideration of amendments 8 and 14 to the United States Constitution, and article 1, section 14 of the Washington State Constitution. The issue does not raise or affect the question, contrary to what the majority suggest, whether a chronic addictive alcoholic is responsible for acts in which he engages while intoxicated. Furthermore, the issue does not raise or affect the question, also contrary to what the majority suggest, whether a chronic addictive alcoholic’s illness should be available to him as a defense if charged with committing some crime other than being drunk in public. Although the trial judge mentioned these questions in his oral opinion, they were not properly before him and they are not raised on appeal. The sole issue presently before this court is whether an individual suffering from chronic addictive alcoholism can be convicted for appearing in public in a drunken condition.
I. The Nature of Defendant’s Disease
Numerous text materials exist which deal with the nature of alcoholism. Each one that I examined unequivocally concludes that alcoholism is a disease which should be treated medically rather than punished criminally. See, e.g., Report by the President’s Commission on Law En-*806forcement and Administration of Justice, The Challenge of Crime in a Free Society 233 (1967); M. S. Guttmacher and H. Weihofen, Psychiatry and the Law 318 (1952); D. J. Pittman and C. Gordon, Revolving Door: A Study of the Chronic Police Case Inebriate (1958); D.A.R. Williams, Drunkenness and the Criminal Law in New Zealand, 2 New Zealand Univ. L. Rev. 297 (1967). Yet, society has been slow to comprehend that drinking, a pastime enjoyed by many but condemned by many others, may be a symptom of an illness from which thousands of individuals suffer. At least one author has concluded: “One may well believe that traditional attitudes of hostility toward drunkenness render rational and just determinations more difficult than in insanity cases.” J. Hall, Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045 (1944). Public attitudes being what they are, involving as they do intellectual inertia and a lack of awareness and interest in social problems, I think it is important to discuss some of the characteristics of alcoholism more fully than I believe is done by the majority.
According to the testimony of Dr. Edward M. Pattison, a highly qualified psychiatrist on the staff of the University of Washington School of Medicine who has spent much of his professional life working with alcoholics and their problems, alcoholism may be divided chronologically into three phases: prodromal, crucial or basic, and chronic. These categories were first coined by Professor E. M. Jellinek, and have since become the ones most widely accepted for analytic purposes.
A chart to which Dr. Pattison referred during his testimony, illustrating Professor Jellinek’s divisions of alcoholism, indicates that in the prodromal phase, an alcoholic begins sneaking drinks and becomes preoccupied with drinking. He tends to gulp his drinks and will usually avoid any reference to drinking. His first blackout usually will occur during this phase.
By the time an alcoholic reaches the crucial or basic phase, he has the disease of alcoholic addiction. Symptoms *807of alcoholic addiction include changes in drinking patterns, protection of supply, loss of jobs, and morning drinking. Somewhere between this phase and the chronic phase, an alcoholic experiences “loss of control,” that is, once he begins drinking, he can no longer stop until he is intoxicated.
In the chronic phase, an alcoholic is completely addicted. He not only cannot stop once he begins drinking, but he cannot stop himself from taking a first drink. He begins to physically deteriorate and his alcohol tolerance decreases. He experiences psycho-motor inhibitions and tremors, and cirrhosis of the liver begins. If his disease goes untreated, he will die.
Dr. Pattison testified that defendant was in the prodromal phase of alcoholism from 1928 to 1946. Defendant was divorced in 1946 and his family fell apart soon afterwards. Immediately subsequent to this, defendant’s drinking habits changed radically, and shortly thereafter he passed into the crucial or basic phase and then into the chronic phase of alcoholism.
Alcoholism is, in one sense, somewhat unique. While it can be arrested in most cases, it is virtually impossible to cure. According to Dr. Pattison, less than 5 per cent of all alcoholics could ever be said to be cured, i.e.} able to return to normal drinking. For the remainder, rehabilitation is the best that treatment can offer. Treatment helps alcoholics control their urges to drink. They may still have cravings for alcohol but it may be possible for them to stifle their cravings and perhaps lead normal lives.
The principal reason there is no cure for alcoholism lies in the addictive effect of alcohol on human beings. According to Dr. Pattison, addiction is a complex array of physical, emotional, and social needs which compel an addict to attempt to satisfy his cravings. Alcohol addiction manifests itself in two ways which are important to this case: (1) An addict is unable to prevent himself from drinking, and (2) once he begins to drink he is unable to stop until intoxicated.
*808To say defendant is unable to prevent himself from drinking is not to say that he must drink continuously. Certainly he will not drink when being restrained involuntarily, and he may even abstain voluntarily for a short while. But, this does not mean that a chronic alcoholic is not addicted to drinking. While a chronic addictive alcoholic may refrain from drinking for short intervals, he will virtually always return to it. Dr. Pattison commented upon this point as follows:
[T]he chronic addictive alcoholic will attempt to remain sober and may do so up to six or eight months voluntarily but at the end of this time he is unable to refrain from finally and eventually returning to drinking. (Italics mine.)
The majority seem to believe that drinking is a voluntary thing to a chronic addictive alcoholic. Numerous places in the majority opinion stress the notion that if alcoholics were strong enough people they could shake their drinking habits. The majority evidently feel alcoholics are simply weak characters who are unwilling to control their alcohol problems, even though quite able to do so.
The only evidence presented by the majority in support of this view is testimony by Dr. John H. Lindberg, a highly qualified internist on the staff of the University of Washington School of Medicine, to the effect that there is perhaps a 5 per cent chance that defendant could successfully treat himself for his illness. However, it is likely Dr. Lind-berg made this statement only to show that self-rehabilitation is possible, and not to suggest that there is any substantial probability of self-rehabilitation occurring. In other words, Dr. Lindberg’s point seems to have been that while as an abstract medical proposition it is conceivable for chronic addictive alcoholics to prevent themselves from drinking, as a practical matter it is impossible to view their drinking as anything but involuntary in all but the rarest of cases. On cross-examination, the following colloquy took place between the prosecution and Dr. Lindberg:
Q. I believe you said, Doctor, that Mr. Hill revealed to you some potentiality of the ability to refrain from im*809bibing? A. Yes. In other words I would also say his case is not hopeless. (Italics mine.)
In light of the myriad authorities to the contrary, e.g., E. M. Jellinek, The Disease Concept of Alcoholism (1960); D. J. Pittman and C. Gordon, Revolving Door: A Study of the Chronic Police Case Inebriate (1958), I find the unlikely suggestion of support contained in Dr. Lindberg’s statement a dangerously slim thread upon which to hang the notion that chronic addictive alcoholics are voluntary drinkers who are capable of exercising self-rehabilitation if they so desire.
A chronic addictive alcoholic, because of the social and economic disorientation which results from his disease, spends much of his time while drunk in public. Public displays of drunkenness could in fact be said to be symptomatic of chronic addictive alcoholism, in the sense that they are normal concomitants of the disease. Dr. Pattison, in response to a question on cross-examination, made the following remark:
Q. . . . [W] ould you say that appearing in public while under the influence of alcohol by an alcoholic is a symptom of alcoholism? ... A. I will say yes in that this is typical of the chronic addictive alcoholic. You do not find the early prodromal excessive drinker appearing intoxicated in public. This would be unusual. It is only when the person has entered into vocational and social deterioration and disintegration and no longer can control the drinking behavior that he appears in public intoxicated so I would say by and large, yes. (Italics mine.)
As a consequence, we can only conclude, on the basis of Dr. Pattison’s uncontested statement, that the ordinance with which we are concerned in the instant matter punishes a particular class of individuals solely for exhibiting symptoms of a disease from which they suffer which they characteristically cannot prevent exhibiting.
The majority, however, evidently do not share this view. One of the points emphasized is that an inebriate, even an alcoholic, need not appear intoxicated in public. In support *810of this position, the majority refer to certain statistics cited by King County Superior Court Judge Charles Z. Smith (a defense witness in the instant case). According to Judge Smith, there are about 37,000 alcoholics in the King County area, of which approximately 10 per cent are tried for public intoxication each year. The majority opinion concludes that if 90 per cent of King County’s alcoholics can avoid public exhibitions of drunkenness, it is not unreasonable to require the remaining 10 per cent to do likewise.
There are three reasons why I cannot agree with this conclusion. First, the figure of 3,600 people arrested for public intoxication includes only those individuals who appear for trial. According to Judge Smith, the municipal court in Seattle has a policy of allowing those able to post the $20 bail to forfeit their bail and avoid appearing in court. Consequently, only those arrested who cannot raise $20 ever have their cases processed. It is for this reason that Judge Smith estimates that “at least 99 per cent” of the 3,600 individuals processed are “skid road” alcoholics, individuals least likely to have the means to remain off the streets.
Second, arrest policies of most police departments are such that only individuals who seem to be broke, and to have no where to go and no one to help them, are arrested for public drunkenness, unless their drunkenness is accompanied by some misconduct. See Report of the President’s Commission on Crime in the District of Columbia 474, 475 (1966). I am convinced that these arrest policies, which no doubt may be justifiable under the circumstances, further dull the force of arguments emphasizing a discrepancy between the total number of alcoholics and the number of inebriates processed in municipal courts.
Third, the figure cited by Judge Smith of 37,000 alcoholics in the King County area (27,000 alcoholics in the Seattle area alone) does not reflect the phase of alcoholism each is in. On cross-examination, Dr. Pattison was careful to point out that the figures cited fail to distinguish chronic addictive alcoholics, those who characteristically are found *811drunk in public, from crucial or basic and prodromal phase alcoholics. “What we define as the chronic addictive alcoholic,” stated Dr. Pattison, “probably only represents -a small percentage of the 27,000 or 37,000 alcoholics in this area.” In light of these reasons, I cannot see how the fact that only 10 per cent of King County’s entire population of alcoholics are processed through municipal court each year in any way detracts from Dr. Pattison’s statement that public drunkenness is a symptom of chronic addictive alcoholism.
Thus, contrary to the views of the majority, it seems sound and convincing to me to conclude that chronic addictive alcoholism is a disease, that its symptoms include the inability to refrain from drinking, the inability to stop drinking once started until intoxicated, and a frequent display of public drunkenness, and that while it is unlikely that an individual having this illness can be cured, it is quite likely that proper medical aid can do much to rehabilitate him. The more pertinent question, however, is whether it is unconstitutional to prosecute chronic addictive alcoholics for public drunkenness. The majority say no; I disagree.
II. Defendant’s Conviction as Cruel and Unusual Punishment
Initially, it should be said that there are no serious suggestions by responsible, thinking people that chronic addictive alcoholics ought to he punished criminally. The consensus seems to be that the criminal law approach to chronic addictive alcoholism and its related social problems is a miserable and abject failure. The continued existence of this problem and our lack of answers should be an ever-present reminder of what can only be termed a national disgrace. See Report by the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 233, 235 (1967); Report of the President’s Commission on Crime in the District of Columbia 474, 490, 501 (1966); J. Murtagh, The Derelicts *812of Skid Row, Atlantic Monthly, March 1962, pp. 77, 81. On a KING radio documentary entitled “Cycle of Shame,” broadcast on January 17, 1967, Seattle Police Chief Frank Ramon expressed views which are typical among individuals who are aware of the senselessness of current criminal law policies with regard to alcoholism:
Certainly I’d like to see a determination that these people [alcoholics] who are living useless futile lives, and certainly it’s not because they want to, that they are not treated like criminals. I believe that, some 200 years ago, mentally ill persons were treated in the same fashion, and I think it is time our society grows up and recognizes that there are problems beyond an individual’s control that though his behavior may be anti-social, he should not be treated as a common criminal.
The enormous expense and time consumed by, and the burden imposed upon, our overcrowded lower courts in prosecuting alcoholics for public drunkenness are additional factors which should cause disenchantment with our present criminal law approach. Approximately one-third of all reported arrests in the United States are for public intoxication. President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 99 (1967). In 1963, this amounted to 1,514,680 arrests. E. Barrett, Criminal Justice: The Problem of Mass Production, in The American Assembly, Columbia University, The Courts, the Public, and the Law Explosion 85, 103 (1965). Recidivism is the rule rather than the exception among those arrested for public drunkenness. In the instant case, Judge Smith testified that individuals arrested for public drunkenness appear an average of 10 times a year; many appear as many as 20 times a year. Defendant Hill has been convicted of the crime of public intoxication 98 times. The total annual cost to the city, county, and state for handling King County’s alcoholics is approximately $3,500,000. It is apparent that if society derives any benefit from our present policies regarding alcoholics, it is not worth the price we are paying for it.
*813Even granting, however, that criminally punishing alcoholics is extremely undesirable, the question remains: is it unconstitutional to prosecute chronic addictive alcoholics for exhibiting symptoms of their disease in public? I think the answer is yes.3
The eighth amendment to the United States Constitution states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The cruel and unusual punishment principles of this amendment have been made applicable to the states through the fourteenth amendment to the United States Constitution. Robinson v. California, 370 U. S. 660 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947). Moreover, the Washington State Constitution has a similar provision, Const, art. 1, § 14:
Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.
I believe both of these constitutional provisions prevent prosecution of defendant under the facts in the instant case4
*814The United States Supreme Court devoted considerable attention to the meaning of cruel and unusual punishment in the case of Trop v. Dulles, 356 U. S. 86 (1958), involving denationalization under the Nationality Act of 1940. The court stated, id. at 99:
The exact scope of the constitutional phrase “cruel and unusual” has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. . . . The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.
The court went on to add a very important sentence, id. at 101:
The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
In Robinson v. California, 370 U. S. 660 (1962), the Supreme Court had an opportunity to apply these principles to a problem more closely analogous to the one now before us. Robinson, supra, concerned a California statute which penalized individuals for using, or being addicted to the use of, narcotics. In other words, this statute penalized individuals because of their status as narcotics addicts. The Supreme Court held that the California statute inflicted cruel and unusual punishment and was thus unconstitutional. While narcotics addiction and alcohol addiction differ in some respects,5 as do the facts of the two cases, much of the language of the court in Robinson seems appropriate here, id. at 666:
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a *815venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. (Italics mine.)
It is important, I think, to note that the standards by which we judge what constitutes cruel and unusual punishment vary with the offense committed. This court has stated, State v. Fairbanks, 25 Wn.2d 686, 689, 171 P.2d 845, 847 (1946):
[D juration of imprisonment fixed as a penalty may be so incommensurate with the gravity of the offense committed as to be violative of . . . [the cruel punishment] provision of the state constitution and of the kindred provision contained in the eighth amendment to the Federal constitution. (Italics mine.)
This same principle was phrased by the Supreme Court in Robinson, supra, at 667, in this way:
To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold. (Italics mine.)
Two federal courts of appeal recently concluded that the principles espoused in Robinson apply to public drunkenness prosecutions of alcoholics. They held that it is cruel and unusual punishment to criminally penalize a chronic alcoholic for his involuntary public displays of drunkenness. Easter v. District of Columbia, 361 F.2d 50 (D. C. Cir. 1966) ;6 Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966). *816Although the majority choose to summarily dismiss these cases, I find them most persuasive. To my mind, the punishment inflicted on chronic addictive alcoholics under the ordinance in the instant case is no less cruel than that inflicted on narcotics addicts under the statute in Robinson, supra. While the cases may be factually distinguishable, the principles stated in Robinson, which we have bound ourselves to follow, see note 4 supra, directly apply to the instant matter. Medical testimony and authorities unequivocally state that alcoholism is a disease, a “human affliction,” which should be treated medically rather than punished criminally. There is undisputed testimony in the instant case that public drunkenness, the crime with which defendant is charged, is, for chronic addictive alcoholics like defendant, involuntary—it is a natural concomitant of their disease. In my judgment, the ordinance in question fosters a system which, in the instant case, results in the infliction of cruel and unusual punishment contrary to our state and federal constitutions.
The majority would distinguish the instant case from Robinson v. California, supra, on the ground that the ordinance in the instant case does not punish chronic addictive alcoholics because they are afflicted but rather because of their conduct. However, such a distinction, it seems to me, is simply too transparent to lend consequential support to defendant’s conviction. Seattle ordinance No. 16046, § 1, Seattle City Code § 12.11.020, the ordinance in question, states that “ [i] t shall be unlawful for any person to be guilty of . . . drunkenness,” and drunkenness is a symptom of the disease of chronic addictive alcoholism. While the majority have construed this ordinance to apply only to public drunkenness, the fact remains that chronic addictive alcoholics characteristically exhibit the principal symptom of their disease—drunkenness—in public through no fault of their own. I can see no rational basis for disallowing punishment of individuals because they are ill but approving their punishment for involuntarily exhibiting a symptom of their illness.
*817The majority point out that in this state we follow the rule that an individual is responsible for his criminal acts unless he is unable to comprehend the moral quality of his acts or distinguish between right and wrong. State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962). Since defendant does not contend that he falls within this rule, i.e., that he is insane, the majority conclude defendant’s volitional inabilities will not save him. However, the conclusion does not follow from the premise.
In general, to hold an individual responsible for a criminal act there must be both actus reus and mens rea. In other words, there must be both a voluntary criminal act and intent to commit a crime. H. Foster, What Psychiatrists Should Know About the Limitations of Law, 1965 Wis. L. Rev. 189, 226. While this court has held that the legislature has the power to remove mens rea requirements from crimes, so that criminal intent is no longer a factor, State v. Lindberg, 125 Wash. 51, 215 Pac. 41 (1923), we have never held that the requirement of a voluntary act is unnecessary, except in murder cases. Cf. State v. Harris, 57 Wn.2d 383, 357 P.2d 719 (1960); State v. Sweetman, 138 Wash. 366, 244 Pac. 732 (1926). See generally R. Perkins, Criminal Law 652-55 (1957).
Insanity is a defense because one legally insane cannot comprehend or distinguish between particular moral values. In other words, there can be no mens rea. This rule says nothing about the requirement of actus reus, however, for it assumes insane individuals act voluntarily, if not with understanding. Thus the insanity limitation is not apposite.
If a chronic addictive alcoholic steals from a liquor store, in all probability this act is voluntary since stealing is not compelled by alcoholic addiction.7 On the other hand, if a *818chronic addictive alcoholic appears in public while intoxicated, in all probability this act is not voluntary since drinking is compelled by alcoholic addiction. In short, chronic addictive alcoholism would be a defense to a charge of public drunkenness because there is no actus reus, no voluntary act, but it would not be a defense to anything else.8
Much of what I believe to be the majority’s confusion about the instant matter results from their initial failure to view chronic addictive alcoholism as a disease. I do not think the majority would hesitate to strike down an ordinance making it a crime for an epileptic to suffer a seizure in public, even though it would be possible, with extreme difficulty, for all epileptics to constantly remain indoors. This being so, I am unable to rationalize such a result with the result in the instant case. Alcoholics are as ill as epileptics, and constitutionally deserve the same considerations.
III. Summary and Conclusion
Defendant is a chronic addictive alcoholic. Chronic addictive alcoholism is a disease which ought to be treated medically. Symptoms of chronic addictive alcoholism include an inability to refrain from drinking and an inability to stop drinking once started until intoxicated. Because of their social and economic disorientation, chrome addictive alcoholics characteristically are unable to prevent themselves from being drunk in public. For these reasons, I am convinced the Seattle ordinance which penalizes individuals who appear drunk in public is unconstitutional as applied to chronic addictive alcoholics, in that it subjects them to cruel and unusual punishment.
The majority suggest that any decision changing the current legal philosophy and approach respecting chronic addictive alcoholism would in any event be better left to the legislature. This argument is not without merit. There is *819support for the view that, without legislation which provides a means of caring for chronic addictive alcoholics, they would not be aided to any significant extent by supplying them with a defense to a charge of public intoxication. In Report of the President’s Commission on Crime in the District of Columbia 486-90 (1966), the Commission discusses developments in the District subsequent to Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966). Its report is not encouraging. The District of Columbia government failed to respond in any significant manner to the decision, and as a result alcoholics, while no longer subject to the stigma of a criminal conviction, are still not helped. Arrest policies are still the same, no new facilities have been built, and in general things are almost as black as they were prior to Easter.
The Commission’s report does indicate, however that other areas, such as St. Louis, have done more to aid alcoholics. Report of the D. C. Commission, supra, at 477. More importantly, for purposes of the instant case, King County has already initiated a program through the King County Sheriff, in cooperation with the King County Commissioners, which represents a most enlightened step toward aiding alcoholics.9 While additional legislative help would no doubt be of great benefit to Rung County and the remainder of the state,10 the fact remains that we are not faced with a situation like that existing in the District of Columbia.
*820The considerations just mentioned, however, are in many respects irrelevant to the instant decision. Whether or not the legislature would meet its responsibilities if the ordinance were found unconstitutional as applied to chronic addictive alcoholics is hardly an ultimately compelling concern for the judiciary. The fact, too, that such a decision would not be a panacea for all of society’s problems with alcoholism does not seem particularly pertinent either. If, after balancing valid competing interests, an ordinance is found to be unconstitutional, courts must rectify the situation. When a class of individuals is being subjected to cruel and unusual punishment because of a particular legislative act, courts, in neutralizing the effects of this act, should not indulge themselves the luxury of contemplating whether their judicial obligations would be more easily discharge-able or less painful to execute if there were additional legislation to fill the void left by their actions.
For the reasons stated in the foregoing opinion, I would reverse the judgment below and dismiss the case.
Rosellini, J., concurs with Finley, C. J.
Judge John M. Murtagh has criticized the few courts which have considered this issue for drawing it too narrowly. J. Murtagh, Arrest for Public Intoxication, 35 Fordham L. Rev. 1, 9 (1966). As he correctly points out, by restricting the issue to chronic addictive alcoholics, many individuals are excluded who are deserving of the same considerations. While I tend to agree with Judge Murtagh, however, practicalities would seem to prevent a broader holding at this time. In the first place, defendant is a chronic addictive alcoholic, so no broader holding is indicated. In the second place, Dr. Pattison pointed out that while chronic alcoholism is readily subject to diagnosis, lesser degrees of alcoholism are more difficult to diagnose. For these reasons, the dissent is restricted to the issue as presented.
In considering whether U.S. Const, amends. 8, 14 and/or Const, art. 1, § 14 have been violated or abridged, it should be kept in mind that we have bound ourselves to apply, when considering our own constitution, interpretations by the United States Supreme Court of federal constitutional questions when the Washington State Constitution contains a similar provision. Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966); State v. Schoel. 54 Wn.2d 388, 341 P.2d 481 (1959).
There was evidence before the court in Robinson that drug addiction may be contracted innocently, e.g., from the use of medically prescribed drugs, or involuntarily, e.g., children born of narcotics addicts. No similar evidence is before our court concerning alcohol addiction.
In Easter, the court’s determination was based principally upon a congressional act which establishes a program for rehabilitating alcoholics in the District of Columbia. Four members of the court went on, however, and, relying somewhat upon the reasoning in Driver v. Hinnant, infra, stated: “Our decision would be the same were we without the guidance furnished by the Act of 1947.” 361 F.2d at 53.
The majority at one point imply that, because “alcoholics have been known to commit serious crime,” they are likely prospects for criminal activity and therefore ought to be locked away. Unfortunately, this is equally true of every class of individuals in society, and, in fact, chronic addictive alcoholics characteristically pose little if any threat to society. See D. J. Pittman and C. Gordon, Revolving Door: A study of the Chronic Police Case Inebriate 41-52, 130-38 (1958).
It is for this reason, too, that RCW 9.01.114 (which disallows voluntary drunkenness as a defense to criminal acts) is irrelevant.
The King County Sheriff’s Department has recently established the Cedar Hills Alcoholism Treatment Center. This facility can house 112 patients. The program under which individuals are committed to Cedar Hills, while still in its embryonic stages, is most encouraging. Alcoholics arrested in King County for public intoxication are carefully screened prior to trial. If they are in fact found to be alcoholics, the Seattle Municipal Court will sentence them for a period of 90 days, with a recommendation that the sentence be carried out at Cedar Hills. While forced rehabilitation may not be as conducive to favorable results as voluntary rehabilitation, this procedure is certainly more commendable than incarcerating alcoholics in jail.
It should be noted that there is some additional legislative aid supplied by RCW 70.96. This chapter establishes a statewide program for assistance in development and operation of public and private facilities for referral, care, custody, treatment, recovery, and rehabilita*820tion of alcoholics. In 1967 the legislature appropriated $1,000,000 for use by the Department of Health, and in addition transferred to the Department of Health 20 per cent of the funds derived from beer and wine licenses solely to carry out the purposes of RCW 70.96.085. Laws of 1967, Ex. Ses., ch. 75. These expenditures may reflect legislative recognition of the state’s responsibility for problems caused by sales of alcoholic beverages—sales in which the state engages at enormous profits.