The opinion
Mallery, J.
(concurring) — The respondents refused to sell their home to a Negro, and, when the Washington State Board Against Discrimination (hereinafter called the board) ordered them to do so, they appealed to the superior court.
*800 The trial court, upon the appeal, held that Laws of 1957, chapter 37, p. 107 (hereinafter referred to as the act), which created the board and gave it the power to order the sale of private property to a Negro, was unconstitutional. The board, in its capacity as a party litigant, then appealed to this court the trial court’s reversal of its own order, which it had issued in its role as a tribunal.
I.
The respondent’s home, which was ordered sold to a Negro, is specifically protected against such an order by amendment 9 of the Washington state constitution, which provides, inter alia:
“Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. ...” (Italics mine.)
The act of the legislature is invalid because it derogates from this constitutional right. The legislature attempted to evade the prohibition of the constitution by using an arbitrary classification of private homes, which it designated as publicly-assisted housing. This was done in recognition of the fact that the ninth amendment is not applicable to government institutions. It then proceeded to subject private homes to forced sales to private people on the assumption that it could treat private homes as public institutions if it called them by some phrase having the word public in it. The arbitrary classification of publicly-assisted housing is found in RCW 49.60.010, which provides, inter alia:
“... A state agency is herein created with powers with respect to elimination and prevention of discrimination ... in publicly assisted housing because of race, creed, color, or national origin; ...” (Italics mine.)
That the classification publicly-assisted housing does not mean government financed slum clearance projects (with which the act is not concerned), government housing projects, or any other conceivable form of housing owned, operated, regulated, or controlled by the government is *801 clearly established by the way the act itself defines the phrase publicly-assisted housing. RCW 49.60.040 provides, inter alia:
“ ‘Publicly-assisted housing’ includes any building . . . used ... as the home ... of one or more persons, . . . which is financed in whole or in part by a loan, . . . the repayment of which is guaranteed or insured by the federal government ... or the state . . . during the life of such loan ...”
The theory of the act that F. H. A. financing converts a private home into a public institution is a palpable subterfuge to violate the clear mandate of the ninth amendment to the state constitution.
The constitutional question posed by this case is simply this: Can a private person, Negro or white, compel any owner to sell his private home to him? The act in question says that he can. The answer of the ninth amendment of the state constitution, quoted above, is an unequivocal no. The personal characteristics of the home owner and would-be buyer are irrelevant to the constitutional protection of private property, which is absolute.
The act violates the ninth amendment of the state constitution and is, therefore, invalid.
II.
The tribunal’s order that the respondents sell their home to a Negro involves the title and possession of real property. The act purports to confer jurisdiction upon the board and tribunal to make the adjudication embodied in the order applicable to real property.
This is violative of Art. IY, § 6, of the state constitution, which provides, inter alia:
“The superior court shall have original jurisdiction in all cases . . . which involve the title or possession of real property, . . . ” (Italics mine.)
A real property owner has a constitutional right to have his title and possessory rights to real property adjudicated in the superior court in the first instance. It is apparent that *802 the act purports to relegate the superior court to an appellate jurisdiction and to confer original jurisdiction upon the board-tribunal for the purpose of ordering the sale of real property to Negroes.
None of the inferior tribunals in this state can exercise any jurisdiction whatever over the title and possession of real property for the inescapable reason that they have no original jurisdiction over real property in particular and no appellate jurisdiction of any kind.
The act ignores and violates the state constitution in its attempt to confer original jurisdiction upon the board and thereby relegate the superior court to an appellate jurisdiction. This is done specifically in RCW 49.60.270, which provides for “ . . . a review of such order in the superior court . . .” It further emphasizes the appellate nature of the superior court’s jurisdiction in RCW 49.60.260, which provides that, upon appeal from the tribunal’s order to the superior court,
“ (2) The findings of the hearing tribunal as to the facts, if supported by substantial and competent evidence shall be conclusive. . . . ”
The act is a legislative mandate to the superior courts to give credence to the factual findings of an inferior tribunal. It therefore violates Art. IV, § 6, of the state constitution for the reason that only superior courts have original jurisdiction over real property.
III.
The act violates Art. I, § 3, of the state constitution, which provides:
“No person shall be deprived of life, liberty, or property, without due process of law.”
The most elementary requirement of due process of law is that the adverse parties have their conflict resolved by an independent tribunal. The tribunal created by the act is neither independent nor impartial. It is an integral part of the board and serves as its right hand. RCW 49.60.250 provides that the chairman of the board (in its role as *803 prosecutor) shall appoint the tribunal from among the “ . . . members of the board or a panel of hearing examiners . . . ”
Thus, the board and tribunal are composed of the same members, who function together for a common purpose. The coach of a team is never permitted to appoint as referee one of his players who happens to be on the bench at the moment. Where one party litigant appoints the tribunal, there can be no claim that the adverse party has had his day in court. The board and its self-appointed tribunal do not meet the most elementary requirements of an independent judiciary.
IV.
The act has created an agency with a combination of legislative, administrative, and judicial powers in violation of the constitutional separation of these powers. Its legislative powers are found in RCW 49.60.120, which provides, inter alia:
“The board shall have the functions, powers and duties: ...
“(3) To adopt, promulgate, amend, and rescind- suitable rules and regulations to carry out . . . the policies and practices of the hoard . . . ” (Italics mine.)
RCW 49.60.120 gives it the power “(4) To receive, investigate and pass upon complaints . . . ” (Italics mine.) The board has exercised the authority conferred upon it by the act to both prosecute and judge over five hundred complaints filed with' it. The following things were done in the instant case under the modus operandi authorized by the specified sections of the act:
The Negroes complained to the board that the respondents refused to sell their home to them (RCW 49.60.230). The board investigated and made a finding in favor of the Negroes (RCW 49.60.240). Upon respondents’ refusal to accede to the board’s finding, a tribunal was appointed (RCW 49.60.250). It held a hearing and issued the order that respondents sell their home to the Negroes (RCW 49.60.250). The respondents appealed the order to the *804 superior court (RCW 49.60,270) to avoid punishment for disobeying the tribunal’s order, which is a misdemeanor (RCW 49.60.310).
The superior court reversed the tribunal’s order upon the ground that the act authorizing coerced sales of private homes to Negroes is unconstitutional. The board, as the adverse party in the litigation, appealed from the superior court’s reversal of the identical order which it itself had issued as a tribunal (RCW 49.60.260(3)).
Thus, the board initiated the case in its role of investigator. As prosecutor, it presented its finding to itself as a tribunal in which role it adjudicated the respondents’ property rights by entering an order or judgment that they sell their home to the Negro complainants. When the superior court reversed the tribunal’s judgment, it reverted to its role as prosecutor by appealing the superior court’s reversal of its own order entered as a tribunal to this court. Pooh Bah of Mikado fame switched roles more tunefully, but not more often than the board does pursuant to the provisions of the act.
The act is unconstitutional because it confers a combination of powers upon the board which the state constitution requires to be separate.
The act erroneously assumes that by merely calling any agency a tribunal, it can then function as a court in addition to its other duties even though it lacks all the elements and characteristics which are constitutionally essential to afford due process to parties brought before it.
A casual examination of the act reveals that the committee or tribunal serves as a flying squadron to be called anywhere to bargain on behalf of any disgruntled Negro who has complained against a white man. It is called a board in this bargaining state of the proceeding. It designates itself as a tribunal in the succeeding coercive stage.
The act provides for this instantaneous transformation in the following sections: RCW 49.60.250 provides that the board render its services free of charge to Negro complainants. RCW 49.60.230 provides how a Negro files his complaint to mobilize the board. RCW 49.60.040 provides *805 that a Negro is discriminated against if, by purchasing any service or commodity, he was “. . . treated as not welcome, accepted, desired or solicited; ...” RCW 49.60.240 provides the board will promptly investigate the complaint and, if true, will endeavor to secure a written agreement from the white man not to repeat the offensive act alleged in the complaint.
The board thus bargains for voluntary written surrender of the white man’s private constitutional rights. This is made financially attractive to the white man because his surrender at this stage of the proceeding can be made without any cost to him. If he elects to defend his constitutional rights, he must bear his own cost in the ensuing prosecution before the tribunal and upon appeal. This is reputed, in the instant case, to be upwards of ten thousand dollars. RCW 49.60.250 provides for the tribunal hearing, and the issuance of a formal order by it. RCW 49.60.310 makes disobedience of the order a misdemeanor. If the outcome of the board or tribunal action is not what the Negro wanted, he may have a new hearing before the board, or he may appeal from a tribunal order to the superior court (RCW 49.60.270).
The board and tribunal would be well calculated to achieve the objectives of the act by summarily disposing of individual objections thereto were it not for the fact that a court cannot prosecute a case before itself and a prosecutor cannot be the judge of a case he presents.
The act attempts to create such an unconstitutional combination and caps it all off with a final coup de gracé to the rights of individuals by RCW 49.60.290, which provides:
“No court of this state shall have jurisdiction to issue any restraining order or temporary or permanent injunction preventing the board from performing any function vested in it by this chapter.”
V.
The coercion of one individual by another in his private affairs is prohibited by Art. I, § 7, of the state constitution. It provides:
*806 “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
This is a general statement of that complex of liberties encompassed in the expression “The Free World” as currently used in commentaries upon world events.
This constitutional right of the individual not to be dominated in his private affairs is predicated upon the theory that the greatest good for the greatest number can be best achieved by permitting the individual to choose his own course of action, conforming, of course, to the reciprocal rights of others.
“. . . In dealings between men, both cannot be free unless each acts voluntarily, otherwise one is subjected to the other’s will.” Browning v. Slenderella Systems of Seattle, 54 Wn. (2d) 440, 455, 341 P. (2d) 859 .
Until our constitution is amended, we must forego the benefits of regimentation with which other parts of the world are blest.
Thus, a white man may exercise his constitutional right to choose his own course of action in his private affairs by making a voluntary sale of his home in an exclusive district to a Negro. Neighbors cannot disturb him in his private affairs by having him enjoined from doing so. So also, if a white man refuses to sell his home to a Negro, his constitutional right not to be disturbed in his private affairs shields him from coercion on the part of the Negro.
The act, which provides for such coercion, is invalid because it is in irreconcilable conflict with the state constitution.
Ott, J., concurs with Mallery, J.