(concurring). I concur in the opinion prepared by Air. Justice Johnson. This ease involves an application to detach a certain tract of land from the city of Reynolds, in this state. Such application was presented to the city council under the provisions of chapter 32, Laws 1921. The city council denied the application and refused to pass an ordinance disconnecting the tract of land in question. Uie petitioner thereupon applied to the district court for a writ of certiorari for the purpose of reviewing the action of the city council. In the petition for such writ he alleges that on October 3d, 1921, he presented a petition to the city council of the city of Reynolds ashing that a certain tract of land therein described be excluded from said city; that said petition was verified, and was signed by himself and the mem*760bers of his family; that he was the sole owner of the land sought to be disconnected and that the persons who signed such petition constituted all the legal voters residing upon said land; that prior to the presentation of such petition he had caused notice to be published that the application to detach would be presented to the city council at a meeting of the city council held October 3d, 1921; that at such meeting he presented proof of the facts alleged in the petition, and, also, presented to the said city council for enactment and asked that it enact an ordinance entitled “An Ordinance Restricting the Limits of the City of Reynolds and Disconnecting and Excluding the S.W.¿ of Section 1, Township 14S, North of Range 51 therefrom;” that such ordinance was given its first reading at the meeting at which it was presented; that at an adjourned meeting of said city council held December 12th, 1921, said ordinance was placed upon its second reading and that “on motion duly made and seconded, said city council, by a vote of all the aldermen present, refused to grant the request of the petitioner and rejected his petition and refused to pass said ordinance.”
The district court issued a writ of certiorari ex parte. Upon the return day the defendants appeared and filed a return to such writ. The return admitted the presentation of the application for detachment of the territory, also admitted that the city council had refused to pass the ordinance disconnecting the territory in question, and alleged that the property sought to be detached was part of the territory included within the limits of the city of Reynolds at the time of its incorporation as a city. Such return further alleged that chapter 32, Laws 1921, was unconstitutional, in this, that it violated certain constitutional provisions specifically enumerated in the return. After hearing, the district court entered its judgment to the effect “that the proceedings of the city council of the city of Reynolds in refusing to grant the petition for the disconnection and exclusion of the S.W.¿ of section 1, township 148, north of range 51, from within the limits of the city of Reynolds, be modified and annulled;” and in said judgment it was further ordered and adjudged that “said defendants as members of the city council of the city of Reynolds grant the petition of Chas. N. Claver to disconnect and exclude the S.W.£ of township 148, north of range 51 from within the limits of the city of Reynolds, North Dakota, and to *761enact an ordinance carrying such action into effect.” The judgment so entered is the one involved on this appeal.
In the recent case of Baker v. Lenhart, ante, 30, 195 N. W. 16, the question as to the extent of review on certiorari, as well as the question as to the extent of review of the decision of a city council made under chapter 32, Laws 1921, upon an application for the disconnection of territory from the city, were fully considered; and the conclusion was there reached that the city council, and that body alone, was vested with power to receive and act upon a petition for the detachment of territory from a city; that such body is vested with power to hear evidence and draw conclusions therefrom; and that no other body or tribunal has been vested with power to review the city council’s determination of such application. The rule announced in that case is applicable here and is decisive of this case.
It has been suggested that inasmuch as no specific question was raised in the district court as to the propriety of the remedy that that, question ought not to be considered by this court. If the question involved only the propriety of the remedy this would doubtless be true, but the question here strikes much deeper than that of propriety of the remedy. When this matter was presented to the district court (wholly aside from any question as to the propriety of remedy) there was presented as the basic question whether the petition presented a state of facts justifying judicial interference. In other words, the question was necessarily presented to the district court whether, upon the record presented, the petitioner was entitled to any judicial relief whatsoever, and under the ruling announced in Baker v. Lenhavt, supra, it is manifest that this question should have "been answered in the negative.