(concurring) — I have signed and concur in the reasoning and result of the majority opinion for several reasons. First, because I believe this court’s habeas corpus jurisdiction has not been suspended, ousted, or obliterated by the pendency of the abated habeas corpus proceeding in the United States District Court for the Eastern District of Washington; secondly, because the procedural background of this case clearly distinguishes it from the situation presented in In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965); and, third, because any reasonable interpretation of the traditional and historical function of the writ of habeas corpus and of the decision in Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 Sup. Ct. 822 (1963), renders a petition for the writ available, as a post conviction remedy, to one held in custody who makes properly supported allegations of *764infringement of fundamental constitutional rights, regardless of whether such person has theretofore appealed from his conviction. See In re McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965).
Little need be said to further emphasize the view of a majority of the membership of this court concerning the “concurrent” state-federal court habeas corpus jurisdiction noted in In re White v. Rhay, supra. Suffice it to point out that Const, art. 4, § 4,1 vests in this court original jurisdiction in habeas corpus and Const, art. 1, § 132 provides that the privilege of the writ of habeas corpus shall not be suspended, absent rebellion or invasion. Furthermore, RCW 7.36.1303 and 7.36.1404 impose upon this court the obligation to inquire into properly alleged violations of state or federal constitutional rights. Neither the constitutional nor statutory provisions predicate such an inquiry upon the absence of a federal court proceeding. Only judicial comity in an appropriate situation, if that, can justify or warrant *765refusal of our power and duty of habeas corpus inquiry in a proper proceeding initiated in our court by a state prisoner. Parenthetically, it should be observed that 28 U.S.C.A. § 2243 authorizes a federal court to dispose of an application for a writ of habeas corpus “as law and justice require,” and a growing body of federal court decisions appear to approve of the procedure adopted in this case by the United States District Court for the Eastern District of Washington. Ex parte Sullivan, 107 F. Supp. 514 (D. Utah 1952); Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953); Crawford v. Bailey, 234 F. Supp. 700 (E.D.N.C. 1964); Blair v. California, 340 F.2d 741 (9th Cir. 1965); United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th Cir. 1965); Gidley v. Gladden, 237 F. Supp. 477 (D. Ore. 1965); Moorer v. South Carolina, 239 F. Supp. 180 (E.D.S.C. 1965); Grubbs v. Oklahoma, 239 F. Supp. 1014 (E.D. Okla. 1965). These decisions no doubt find sustenance in the dispositions directed by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 Sup. Ct. 1774 (1964), and Boles v. Stevenson, 379 U.S. 43, 13 L. Ed. 2d 109, 85 Sup. Ct. 174 (1964).
Finally, in this respect, it should be noted in passing that Congress in 1966 took what might be considered a page from the case of Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 Sup. Ct. 745 (1963), for it amended 28 U.S.C.A. § 2254 to read, in pertinent part, as follows:
(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
*766(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous. (Italics mine.)
Against this background, I would prefer to view the action by the United States District Court, in the instant case, as a practical procedural effort to realistically afford our state courts an opportunity to pass upon the merits of a state prisoner’s allegations of constitutional infringements. *767It should not be lightly characterized as an effort to relegate our state courts to the role of rendering advisory opinions. Particularly would this appear to be so when Congress has attached a presumption of correctness to an adequate written indicia of a state court’s determination on the merits. Little, if anything, can be accomplished in the field of state-federal court relationships or in the fair administration of criminal justice by engaging in a jurisdictional dialogue. Mutual respect and juristic comity form the ultimate touchstone in the solution of the problems created by the overlapping obligations in the habeas corpus area.
The majority opinion has clearly enunciated the distinctions between the procedural situation confronting us in the instant case and In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965). As pointed out by the majority opinion, petitioner’s initial petition for habeas corpus in this court was disposed of, without written opinion, by sustaining a demurrer. His second petition was dismissed as repetitious. In neither instance did we reach the merits. In contrast, we twice fully and exhaustively reviewed the trial proceedings and the merits of the claims of White — once on appeal (State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962)), and once on petition for habeas corpus (In re White v. Rhay, 64 Wn.2d 15, 390 P.2d 535 (1964)). In both instances we rendered extensive written indicia of our views. White, having thus received the full consideration of this court, turned to the federal courts. When, then, the federal courts tendered the matter back for additional process in this court, this court was fully warranted in believing it had accorded the petitioner due process and that, in the practical interests of the administration of justice and judicial comity, the petitioner was entitled to proceed without further delay in the federal courts. In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965). Following this latter disposition, and before the federal district court rendered its decision in the White matter (April 8, 1966) the decision in Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 Sup. Ct. 836 (1966), was rendered by the United States Supreme Court. The federal dis*768trict court, feeling the Pate decision to be controlling, then granted White’s petition. Mayhaps, the disposition in In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965), would have been different had this court then had the Pate decision before it.
Furthermore, in all proceedings before this court the petitioner in the White matter was fully represented by counsel. In contrast, the petitioner in the instant case, an indigent, was denied the assistance of counsel when his initial application for habeas corpus came before this court and was disposed of on demurrer. In this vein, some note must necessarily be taken of the implications of Smith v. Bennett, 365 U.S. 708, 6 L. Ed. 2d 39, 81 Sup. Ct. 895 (1961); Lane v. Brown, 372 U.S. 477, 9 L. Ed. 2d 892, 83 Sup. Ct. 768 (1963); and Long v. Iowa, 385 U.S. 192, 17 L. Ed. 2d 290, 87 Sup. Ct. 362 (1966).
For the foregoing reasons, In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965), does not furnish the yardstick for our disposition in the present matter.
Finally, the fundamental and traditional function of the writ of habeas corpus deserves some comment. The very purpose of the writ is to afford a mode of redress against restraints imposed contrary to basic constitutional principles. Perforce, it questions the finality of the order or judgment it challenges. In the words of Justice Holmes, taken from his dissent in Frank v. Mangum, 237 U.S. 309, 346, 59 L. Ed. 969, 35 Sup. Ct. 582 (1915):
[H]abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.
That this concept of the writ has been recognized and implemented by our state legislature is evident from RCW 7.36.130, which, in pertinent part, provides:
No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of, commitment has not expired, in either of the cases following:
*769(1) Upon any process issued on any final judgment of a court of competent jurisdiction except where it is alleged in the petition that rights guaranteed the petitioner by the Constitution of the state of Washington or of the United States have been violated. (Italics mine.)
Thus, however eloquently or engagingly one argues the desirability of finality in criminal judgments or decries the availability of the writ absent an appeal in a given case, the politic fact of life remains that the writ is constitutionally and legislatively embedded in our system of criminal justice. It is not about to disappear in the clouds of expediency. See Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 Sup. Ct. 822 (1963). Understandably, there can be disagreement as to the merits of a given petition or application for a writ, but there is little room for dispute as to its ever present availability as a remedy to relieve unconstitutional restraint.
If, in the instant case, there be merit in petitioner’s allegations, we should reach and fairly dispose of the issues thus raised.
“The supreme court shall have original jurisdiction in habeas corpus, .... The supreme court shall also have-power to issue writs of . . . habeas corpus, . . . and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or before the supreme court, or before any superior court of the state or any judge thereof.” Const, art. 4, § 4.
“The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or invasion the public safety requires it.” Const, art. 1, § 13.
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:
“(1) Upon any process issued on any final judgment of a court of competent jurisdiction except where it is alleged in the petition that rights guaranteed the petitioner by the Constitution of the state of Washington or of the United States have been violated.” RCW 7.36.130.
“In the consideration of any petition for a writ of habeas corpus by the supreme court, whether in an original proceeding or upon an appeal, if any federal question shall be presented by the pleadings, it shall be the duty of the supreme court to determine in its opinion whether or not the petitioner has been denied a right guaranteed by the Constitution of the United States.” RCW 7.36.140.