(concurring) — I concur with the result of the majority but not its reasoning. While I agree that defendants should have been allowed to gather signatures at Alderwood Mall, I believe it is both unnecessary and imprudent to arrive at this result by the constitutional analysis adopted by the majority.
In holding Const, art. 1, § 5 may be used by one individual to enforce action against another, the majority has made an unprecedented change in the application of this state's constitution. It interprets the constitution in a way which has never been done since that document was adopted in 1889. It does so without the slightest historical warrant: No case is cited, there is reference to no authority. The majority simply says, "We choose to follow [this] approach." That two other jurisdictions have chosen to adopt the approach and that some commentators have written on the subject, while interesting, is less than per*248suasive as to the Washington Constitution. Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); Glennon & Nowak, A Functional Analysis of the Fourteenth Amendment "State Action" Requirement, 1976 Sup. Ct. Rev. 221; Project, Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L.L. Rev. 271 (1973).
While this court has in the past declared the substance of the Washington Constitution may differ from that of similar provisions of the United States Constitution (see cases cited by majority opinion), this is the first time the court has held the Declaration of Rights in our constitution is designed not just to protect the individual from government but that it may also be used by one individual against the other. It is constitution-making by the judiciary of the most egregious sort.
That the Bill of Rights of the United States was adopted to protect individual rights against the government is standard constitutional doctrine. It has also been the view relative to state bills of rights. H. Rottschaefer, American Constitutional Law § 305 (1939); E. McLain, Constitutional Law in the United States, § 205, at 294 (2d ed. 1910). Most particularly, this was the view at the time of the adoption of the Washington Constitution. See, e.g., T. Cooley, Constitutional Law, ch. 12, at 219 (3d ed. 1898); J. Hare, American Constitutional Law, Lecture 24, at 507 (1889); J. Pomeroy, Constitutional Law § 230 (10th ed. 1888); Letter from Territorial Governor Eugene Semple to S.R. Frazier (Feb. 10, 1889) (deposited in the Washington State Archives).
While "a very narrow range of rights against individuals . . . have been read into the [United States] Constitution", this does not detract from the general proposition that the "Bill of Rights, designed to protect personal liberties, was directed at rights against governmental authority, not other individuals." United States v. Guest, 383 U.S. 745, 771, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966) (Harlan, J., concurring *249in part, dissenting in part). See L. Tribe, American Constitutional Law, ch. 18 (1978). See also Note, A Private Mall Becomes a Public Hall, 26 Loy. L. Rev. 739 (1980).
Const, art. 1 is designated as a Declaration of Rights (see Meany & Condon, Washington's First Constitution, 9 Wash. Hist. Q. 145 (1918), reprinted in E. Meany & J. Condon, Washington's First Constitution, 1878, and Proceedings of the Convention 19 (1924)), not the rights of one person against another, but of the people against their government. This subject has been considered in two articles in the Washington Law Review. In Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 473 (1970), the query is raised as to whether we might not need a new state bill of rights directed toward those " 'private governments' against whose excesses we are also in need of [protection]." It is not contended that these additional guaranties of the rights of private individuals against other private entities presently exist in article 1 of our present state constitution, only that a new bill of rights might be appropriate. See Morris, New Horizons for a State Bill of Rights, 45 Wash. L. Rev. 474 (1970).
It is true, as the majority states, that Const, art. 1, § 5 does not expressly mention "state action”. It is equally true that until today this court had not even hinted article 1, section 5 was concerned with other than the protection of individual rights against state action.
In Fine Arts Guild, Inc. v. Seattle, 74 Wn.2d 503, 512, 445 P.2d 602 (1968), we said:
We have, however, in varying contexts, applied the provisions of Const, art. 1, § 5, and the first amendment to the United States Constitution in pari materia and inferentially interchangeable.
(Footnote omitted.) In Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 58, 615 P.2d 440 (1980), we recently noted "The state equivalent to the First Amendment is Const, art. 1, § 5 . . ." There is nothing in our constitution, in our constitutional history, in the opinions of this court or in the writings of commentators on our constitution which *250gives credence to the position of the majority.
This new approach to our constitution has not been briefed by the parties either as to its rationale or its consequences. It is inconceivable to me that we should make such a fundamental shift in our constitutional perspective under this circumstance, particularly in view of our consistent statements made as to Const, art. 1, § 5 — the latest as recently as last year.
If the citizens of Washington wish their constitution to be used as a sword by individuals against individuals in addition to being used as a shield against the actions of the state, there is a means by which this can be done. Const, art. 23. This court, however, should not expand its views of the fundamental meaning of the constitution — and thus the power of the court — at the expense of the will of the people. See Deukmejian & Thompson, All Sail and No Anchor— Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975 (1979). As it articulates constitutional rights it "chooses" to declare, the majority also arrogates to the court powers undreamed of by those who wrote and those who adopted our constitution.
The majority opinion represents a determination by the court that it, instead of the legislature, will settle conflicting interests among citizens and that it will accomplish this by what it chooses to call a constitutional basis. This is in marked contrast to what had formerly been the responsibility of the court: the legislature would allocate interests among competing groups and individuals and the court would then decide, if an action were brought, whether in this legislative allocation a constitutional right of a citizen against the State had been violated. Now the court will be able to dispense with the inconvenience and cumbersomeness of legislative activity.
Put another way, the majority proposes that the scope of article 1, section 5 shall no longer be limited by such an outmoded doctrine as "state action" which had been a prerequisite to court action. Now there is no limit to the range of wrongs which this court may right — subject only to the *251court's notion of balancing interests. With acceptance of the majority position, the need for a statute will become secondary and the "encourage[ment] in American life" of the "private structuring of individual relationships and [the] repair of their breach" can be set aside for the beneficent guardianship of the state courts. See Boddie v. Connecticut, 401 U.S. 371, 376, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971); Burke & Reber, State Action, Congressional Power and Creditors' Rights: An Essay on the Fourteenth Amendment, 46 S. Cal. L. Rev. 1003, 1014-17 (1973); L. Tribe, American Constitutional Law, ch. 18, at 1149 (1978). Today, the term "imperial judiciary" takes on new meaning. See N. Glazer, Towards an Imperial Judiciary?, 41 The Public Interest 104 (Fall, 1975).
Nevertheless, I agree with the majority that the activity involved in this case was a reasonable restriction on the use of the Alderwood Mall by plaintiff and was not of such a nature as to constitute an uncompensated "taking" of private property. As noted in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980), a "State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision." Rather than emasculate the state action requirement from the Declaration of Rights, however, I would hold that the activity engaged in here by the defendants is authorized by Const, art. 2, § 1(a) (amendment 7), RCW 29.79, and the cases decided by this court. See, e.g., State ex rel. Evich v. Superior Court, 188 Wash. 19, 61 P.2d 143 (1936); State ex rel. Case v. Superior Court, 81 Wash. 623, 143 P. 461 (1914).
The right to exclude others is an essential stick in the bundle of property rights. Kaiser Aetna v. United States, 444 U.S. 164, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979). It is well established, however, that "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense." Armstrong v. *252United States, 364 U.S. 40, 48, 4 L. Ed. 2d 1554, 80 S. Ct. 1563 (1960). As Justice Holmes stated in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 S. Ct. 158, 28 A.L.R. 1321 (1922),
Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.
Pennsylvania Coal Co., at 413.
The police power of the State is an attribute of its sovereignty, an essential element of the power to govern. The power exists without declaration, and the only limitation upon it is that it must reasonably tend to promote some interest of the State, and not violate any constitutional mandate. State v. Dexter, 32 Wn.2d 551, 554, 202 P.2d 906, 13 A.L.R.2d 1081 (1949). In Maple Leaf Investors, Inc. v. Department of Ecology, 88 Wn.2d 726, 565 P.2d 1162 (1977), the court said that
The question essentially is one of social policy which requires the balancing of the public interest in regulating the use of private property against the interests of private landowners not to be encumbered by restrictions on the use of their property.
Maple Leaf Investors, at 731.
The overriding public interest here involved is to make the initiative process available to all. The court recognized in State ex rel. Brislawn v. Meath, 84 Wash. 302, 317-18, 147 P. 11 (1915), that the role created for the people by amendment 7 was closely akin to that of a fourth branch of government. See also Stetson v. Seattle, 74 Wash. 606, 134 P. 494 (1913). It has expressed the conviction that the initiative and referendum constitutional and statutory provisions should be liberally construed, to the end that these popular legislative rights of the people should be preserved and rendered effective. State ex rel. Booth v. Hinkle, 148 Wash. 445, 451, 269 P. 818 (1928), and cases cited therein.
*253It should be noted that the initiative process is not a "right" against government in the sense of Const, art. 1, § 5. Rather, amendment 7 is a declaration by the people in their constitution that they are part of the legislative process. Amendment 7 declares not that the people have a right against government but that the people are part of the apparatus of government — the legislative branch. As a part of government the initiative process may be exercised, as may other aspects of government, only in such a way as not to restrict the use of private property so as to amount to a taking. Maple Leaf Investors, Inc. v. Department of Ecology, supra.
Given the importance of the initiative procedure, I do not feel that the plaintiff's property rights were unreasonably restricted. The property remains in the possession of its owners. The State does not appropriate it or demand exclusive use of it. The people merely desire access to gather signatures on an initiative petition, an integral part of this state's political process. Implicit in the initiative process is the need to gather signatures in a manner which does not violate or unreasonably restrict the rights of private property owners. To bar the reasonable activity engaged in here by defendants would be an unwarranted weakening of the vital interest of the State. Defendants should have been allowed to collect their signatures at Alderwood Mall.