(dissenting) — RCW 3.16.070 designates fees which are retained by justices of the peace as personal income from the operations of a justice of the peace court. These include a fee of fifty cents for a commitment to jail and one dollar for a transcript of a judgment of conviction. (RCW 10.10.040 requires a transcript of the judgment of conviction in appeals to the superior court.) Not every conviction by a justice of the peace results in his collecting, and adding to his personal income, the provisional fees mentioned above.14 However, it is obvious that neither of these provisional fees will be obtained unless an accused is convicted by the justice of the peace. I am convinced this fact (the potential for increased compensation, available upon conviction) is most significant. It and the factor that, under the existing fee system, the number of cases filed and submitted to a particular justice of the peace — and his personal income therefrom — may be controlled and determined by the cooperation of law enforcement officers (whose interest in convictions is understandable, but may be ill advised) go a long way in bringing the instant case within the scope of Tumey v. Ohio (1927), 273 U. S. 510, 71 L. Ed. 749, 47 St. Ct. 437, 50 A. L. R. 1243. The decision in the Turney case is referred to in the majority opinion and discussed at length in Judge Foster’s dissent. Its reasoning is eloquently persuasive. The policy principle and the de*747cisión rendered are inherently right. We should follow its reasoning forthrightly. We should adopt its enlightened policy principle as an integral and essential part of the judicially annunciated, and judicially enforced, basic criminal due process protections accorded to every accused individual who is prosecuted for any offense anywhere, any time, in any court operating under the constitution and the laws of this state.
It should not be avoided, but kept clearly in mind that if the Tumey case (supra) applies, and I am convinced it does, then for the reasons stated herein the decision of a majority in the instant case is clearly not supportable, and it is unquestionably subject to reversal upon a review by the United States Supreme Court.
Respondent was taken before the justice court authorized for and established in Glocca Morra precinct. This precinct is adjacent to the north end of Lake Washington and the highways that serve traffic in that area. It is located in King County, just north of the Seattle city limits. A survey, made by the state court administrator, working with the judiciary subcommittee of the interim legislative council, a part of the legislative branch of our state government, produced detailed reports of the operations of rural justices of the peace. These reports are public documents and official
records which can be judicially noticed. Carolene Products Co. v. United States (1944), 323 U. S. 18, 89 L. Ed. 15, 65 S. Ct. 1, 155 A. L. R. 1371; Adams v. Bolin (1952), 74 Ariz. 269, 247 P. (2d) 617, 33 A. L. R. (2d) 1102; Florida Accountants Ass’n v. Dandelake (Fla. 1957), 98 So. (2d) 323, 70 A. L. R. (2d) 425; Southern Cotton Oil Co. v. Anderson (1920), 80 Fla. 441, 86 So. 629, 16 A. L. R. 255; Wisconsin Ornamental Iron & Bronze Co. v. Wisconsin Tax Comm. (1930), 202 Wis. 355, 229 N. W. 646, 233 N. W. 72; Currie: Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wisconsin L. Rev. 38. The pertinent report shows that, during the calendar year of 1959,15 a total of 2,528 cases *748were filed in the justice court for Glocca Morra precinct. Of that total, 156 cases involved violations of state statutes other than traffic regulations; the remaining 2,372 cases filed were for violations of state traffic statutes. It seems significant that no civil cases were heard in that court during 1959.
As indicated by the survey reports, there are three established justice of the peace courts in the area extending from the north city limits of Seattle to the north boundary of King County (a distance of about three miles), and extending from the western extremity of King County to the incorporated municipality of Bothell (approximately eight miles). The other two justice courts in the area reported that no cases, either civil or criminal, were filed therein during 1959. It is perhaps worthy of note that one of the two justice courts in which no cases were filed is in a precinct adjacent to U. S. Highway No. 99, the main thoroughfare north from Seattle.
RCW 46.52.100, relating to violations of state traffic laws, states, in part, that
“Venue in all justice courts shall be before one of the two nearest justices of the peace in incorporated cities and towns nearest to the point the violation allegedly occurred: Provided, That in counties of class A and of the first class such cases may be tried in the county seat at the request of the defendant.” (Italics mine.)
(The provision applies to King County; RCW 36.13.090.)
RCW 46.52.100 is a restriction upon the broader provisions of RCW 3.20.131,16 in that it requires that persons violating state traffic laws must be charged in one of the two nearest incorporated cities or towns. RCW 46.52.100 clearly applies, and, just as clearly, was not complied with by the justice of the peace and law enforcement officers in 2,372 specific instances in 1959. This statistic, though not direct and positive evidence, should classify as circum*749stantial, and on any scale of measurement as to probative value should be strongly suggestive or incriminating as to personal bias and prejudice.
The majority take the position that respondent’s waiver of his right to be tried in the county seat (i.e., Seattle, by a salaried justice of the peace) was a waiver of all objections to being tried in Glocca Morra precinct. I do not agree.
It is true that respondent was offered an opportunity to have his case transferred from the justice court in which he was about to be tried to a justice court at the county seat (city of Seattle); furthermore, that respondent declined the offer. In some contexts certain rights, unless reasonably and seasonably asserted, are deemed waived. However, in the instant situation, the right to be tried before a court which is above reproach on grounds of bias or personal interest is so fundamental to the ideals of Anglo-American law and to any pertinent definition of justice, that I cannot in good conscience subscribe to the waiver argument of the majority opinion. In fact, I would classify absence of personal bias and personal interest as a sine qua non of the judicial administration of justice. I cannot compromise these views and my conscience to say that respondent waived this fundamental right and was foreclosed from collaterally attacking his conviction.
The reports obtained by the court administrator indicate that, during the entire year of 1959, law enforcement officers filed no criminal charge in any justice court in King County north of Seattle, except in the court of Glocca Morra precinct. There may well be a proper and acceptable explanation for this. But the record in this case is in this respect conspicuously silent. The report of the justice court operations in Glocca Morra shows that law enforcement officers filed an average of almost 6.5 traffic violation cases each day. Thus, based upon the ^statistics available, it would seem (whether or not admitted expressly by the officers or by the justice of the peace) that.officers consistently by-passed the other justice courts in the area and refrained from filing cases at the county seat, but did file a volume of cases with the court that convicted re*750spondent. As the result of the large volume of cases, the relatively small fees per individual case retained by the justice of the peace in Glocca Morra precinct in 1959 totaled over $6,000. The neighboring justices, of course, had no fees whatever from cases filed.
The research and the statistics alluded to in the dissent by Judge Foster are most persuasive (a) that fee justice courts are not consonant with modern social needs, (b) that their operations are inconsistent with acceptable modern standards of judicial administration, and (c) that experience in other states and in countries other than our own counsels strongly against continuance of the fee justice court system. This research and the statistics, obviously, do not relate specifically to the operations of the Glocca Morra justice- court. However, as mentioned hereinbefore, one of the reports obtained by the court administrator of the state courts specifically covered operations of the Glocca Morra justice court. There is a closer and more direct relationship between statistical information in this report and the respondent and his rights in his case now before us. These statistics, it seems to me, specifically support the conclusions reached in Judge Foster’s dissent respecting denial of respondent’s due process rights.
This, certainly is in accord with the views of the trial judge expressed in his memorandum opinion, in part, as follows:'
“ . : . Under the statutes of this state, the temptation to tip the balance in favor of the state is nourished not only by the opportunity to double the fee but also by the knowledge that the entire source of revenue can be cut off at the whim of the arresting officer. It is true that the amount of money involved in a single case is small. However, the public records of this county demonstrate that these small fees may total a very large sum of money annually in those justice courts which are chosen ...”
It is significant and somewhat disturbing, if not surprising, that the express direction of RCW 46.52.100 has been so disregarded by law enforcement officials, and that this disregard for the law apparently has been condoned by the *751Glocca Morra justice of the peace court. In the face of the command of both the federal constitution and- our state constitution that accused persons be afforded due process of law, it is not enough, under the facts in'.this case, to say that respondent had a right to have his case transferred to a court in the county seat, and that he was invited to exercise this right. Evidenced here is a consistent pattern of evasion of a statutory command that alleged traffic violators be charged in a nearby city or town. In order to avail himself of the benefit of his right to have his case transferred out of a court, which the judge and the arresting officer knew had, originally, no authority to try him, the accused would have had to submit to inconvenience caused by intentional disregard of statute; and, further, the accused would, if convicted in the second court, have had to pay to it a fee of $2.00 for the change of venue (RCW 3.16-.070). The fact that the defendant, if acquitted by the court to which the cause was transferred, would not have to pay the additional charge (RCW 10.46.210) is immaterial. The guilty, as well as the innocent, are entitled to due process.
There is no denying that Art. IV, § 13, of the Washington Constitution, authorizes the legislature to establish a fee justice court system in our state. But it must also be recognized that, in addition to the provisions of the fourteenth amendment to the federal constitution, Art. I, § 3, of the Washington Constitution provides that “no person shall be deprived of life, liberty, or property, without due process of law.” The problem in this case is presented to us for decision in a judicial forum, rather than a legislative one. Essentially, the decision of this state court of last resort is applicable to the particular respondent in this particular case. This, I think, is important. There are, of course, many fee justice courts in this state whose operations undoubtedly are above reproach on due process grounds. I am not now prepared to say that the due process requirement is totally incompatible with the fee justice system. But, conversely, neither statutory nor constitu*752tional authorization for a fee justice system authorizes such a system or an individual court thereof to function without regard to due process principles. In the instant case, we have a situation in which (1) a justice of the peace who convicts an accused may receive additional fees which he cannot receive without a conviction; (2) a number of justices of the peace in a small area in order to receive income from the filing of criminal cases (the survey cited earlier reveals that the bulk of cases heard by rural justices of the peace are criminal) may have to compete for the good will or cooperation of law enforcement officers;17 (3) police officers and the Glocca Morra justice court have, in a very substantial number of cases, ignored RCW 46.52-.100, and may thereby have imposed unreasonably upon defendants an inconvenience and potential additional cost in order to enjoy their right to be tried elsewhere.
I am convinced the foregoing analysis supports the conclusion reached by the trial court that respondent has been denied due' process of law. I must reject as unrealistic and entirely too theoretical and technical any explanation that respondent lost his right to object to the denial of due process by declining a change of venue. I believe the judgment of the trial court discharging respondent should be affirmed.
RCW 3.16.070 also provides for a filing fee of $2.00, a $.50 fee for issuing warrants, and a fee of $.75 for taking recognizance of bail. These fees, totaling $3.75, are acquired, if at all, without regard to the outcome of the case. If a criminal defendant is acquitted, these fees may be recovered from the local county, city or town (RCW 10.46.210); if the defendant is convicted, the costs are collected directly from him as a part of the judgment (RCW 10.04.110) and retained by the justice of the peace (RCW 3.16.160).
Respondent Borchert appeared before the justice court on September 2. 1959.
“All criminal actions before justices of the peace shall be brought before either of the nearest two justices of the peace to the place where the alleged violation occurred, or upon request of the defendant before a justice of the peace of the county seat.”
It requires mofe naivete than I can muster to believe that police officers who feel that they have apprehended a guilty person would not, when allowed freedom of choice, be more likely to select a justice of the peace who is prone to convict.