On petition for rehearing.
Per Curiam.Appellant has petitioned for a rehearing.
It is said that this court, in its former decision, overlooked § 9433, Oomp. Laws 1913, which provides: “When the performance of an act is prohibited by any statute and no penalty for the violation of such statute is imposed in any statute, the doing of such act is a misdemeanor.” And it is contended that when the statutory provisions relating to the examination and certification of public accountants, §§ 549-557, Comp. Laws 1913, are read in connection with this statute, that it constitutes a misdemeanor to do what the criminal complaint in this case charges that Brissman did.
In our opinion the contention is not well founded. Section 9433, supra, is a general provision intended to apply in those cases where the legislature has enacted a law declaring certain acts to be prohibited or unlawful, but prescribed no punishment for a violation thereof. It seems that, in each of the various acts relating to the regulation of professions or vocations and licensing of those engaged therein, the legislature has seen fit to say specifically what shall constitute a violation of the statute, and, also, what the punishment shall be for such violation. This is true as regards the statutes relating to the examination and *426licensing of physicians and surgeons, §§ 458 — 471, pharmacists, §§ 475— 506; dentists, §§ 507-515; osteopathists, §§ 516-523; embalmers, §§ 540 — 572; optometrists, §§ 524 — 539, and barbers §§ 558 — 572. It will be noted that the provisions relating to the examination and certification of accountants are both preceded and followed by provisions relating to other professions and vocations. And the statute relating to accountants is no exception to the general rule thus adopted by the legislature. That statute, also, contains a provision enumerating the acts which shall be deemed punishable under it, and prescribes the punishment. The last section in the act reads thus: “Any certified public accountant who shall falsify a report, statement, investigation, or audit, or who shall in any manner be guilty of a misrepresentation as a certified public accountant, shall be guilty of a misdemeanor and shall be punished accordingly.” Comp. Laws 1913, § 557. Hence, we do not have a situation where the legislature passing a law, either intentionally or otherwise, failed to consider the question of its violation and make provision therefor. Here, the legislature considered that question, and stated what acts should be punishable as violative of the act. It is a maxim of the law that the expression of one thing is the exclusion of another. The rule of construction thus expressed is applicable here. Where, as here, a statute purports to regulate the carrying on of a vocation or profession not formerly subject to regulation, and designates certain acts and a certain class of persons as subject to its penalties, the acts and persons so designated are exclusive and all other acts' and persons are deemed to be exempted. 2 Lewis’s Sutherland, Stat. Constr. 2d ed. § 491, pp. 916-918. The complaint involved in this case wholly fails to show the commission by Brissman of any act made punishable under § 557, supra; and, hence fails to state facts sufficient to constitute a public offense.
It is, also, said that we were in error in stating in the former opinion that no statement of case had been settled. And attention is called to what is denominated an order settling the statement of case. The order mentioned enumerates and identifies the various papers and records in the case, states that the same “constitute all the papers, files and records in said action, and the judgment roll and the whole thereof, and that there are no exhibits and no evidence taken before the district court.” The order is sufficient for the purpose of identifying the papers on *427which the order appealed from was based, and also to show that there was no evidence other than the papers enumerated, submitted to the court, upon the hearing. It does not purport however to show what ■proceedings were had upon hearing in the district court. As to that we have no information except that recitals in the order appealed from. It is a misnomer to call the papers identified by the court a statement of case, or the order identifying such papers and showing what the order was based on, an order settling the statement of case. The purpose of a statement of case is to place in the record matters occurring on the trial or hearing, and which would otherwise not be a part of the record, — matters sometimes resting in the stenographers notes, or the minutes of the court, and at other times resting only in the recollection of the court or counsel. See 4 C. J. 330. See also § 1655, Comp. Laws 1913.
Appellant invokes the rule that certiorari lies only to review acts in excess of jurisdiction. The rule was recognized, and the statutory provisions announcing it were set forth, in the former opinion, but for reasons therein stated the rule was held not applicable in this case. In other words, we held that under the facts disclosed or inferable from the record in this ease, we are not concerned with the propriety of the remedy. As pointed out, the district court is one of general jurisdiction. The ultimate question which gave rise to the litigation was one within the general jurisdiction of that court. And for reasons stated in the former opinion it must be assumed on this appeal that the objection first interposed by the justice of the peace to the propriety of the remedy was abandoned, — that the justice of the peace waived the issuance of a writ of certiorari, and in effect asked, or at least consented, that the district court decide the “entire matter in issue” at “said time and place.” This court has repeatedly held that when a case, which involves a question within the general jurisdiction of the district court, is presented to the district court, with either the express or tacit consent of the parties that the question so presented be determined, the question of the propriety of the remedy becomes immaterial and cannot be subsequently raised. Thus in Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 591, 154 N. W. 654, this court held that where a matter was heard before the board of railroad commissioners, and an appeal taken from the decision of such hoard to the district court, and *428the controversy tried in that court, without objection, the parties cannot afterwards be heard to say that the board of railroad commissioners in the first instance had no 'jurisdiction to hear or determine the matter, and the district court no- right to hear and determine the matter on appeal. And in Lobe v. Bartaschawich, 37 N. D. 572, 164 N. W. 276, this court ruled that where an application was made in the district court to vacate a default judgment entered by a county court with increased jurisdiction, and the parties in effect invited the district court’s ruling -on the merits of the application, the order of the district court setting the judgment aside is valid, even though the application properly should have been made in the county court. In the opinion in that case it was said: “The district court, being a court of general jurisdiction, has power to determine all controversies or questions of difference which can possibly be made the subject of civil action. . . . The subject-matter being with the scope of the jurisdiction of the court in which the motion was made, and such court having determined the controversy by consent of the parties, they are now precluded from questioning the jurisdiction. There are but few analogous cases, presumably due to the fact that parties who- consent to the exercise of the judicial powers of a court of general jurisdiction seldom have the hardihood to impeach the action of the tribunal on jurisdictional grounds.” In our decision in this case, we merely applied the principle announced and applied in these cases. We have- not, as appellant contends, held that the practice adopted in this case is the proper mode of determining the sufficiency of a criminal complaint. We have merely held that where, as here, the matter is presented to the district court, and that court is in effect asked to determine whether there is in fact and in law a criminal action pending before a justice of the peace; and the court determines that question, that a party who has invited such decision cannot afterwards question the propriety of the remedy utilized in the first in stance in bringing this matter before the district, court for determination.
Rehearing denied.
Bikdzell, Oh. J., and CheistiaNSON, BeoNSON, and RobiNSON, LJ., concur.