(dissenting). I most earnestly dissent. The parties on this appeal stipulated that the only question for the supreme court to pass upon is the constitutionality of the statute. Appellant in its brief specifically waived the question of the validity of the proceedings to disconnect the respondent’s land. Nevertheless, the majority opinion refuses to discuss the merits. It reverses the decision of the trial court upon a' technical procedural ground that certiorari is not the appropriate remedy. In so doing it violates well settled rules of pro*762cedure and reverses tlie trial court upon an error that it did not commit. It must be understood that not a single objection was made in the* trial court concerning tlie propriety oí tlie remedy of certiorari. The defendants, the appellants herein, interposed an answer that did not question the propriety of the remedy and that distinctly presented the question of the constitutionality of the statute. An intervention was permitted and a complaint in intervention filed which, likewise, did not question the propriety of the remedy. The parties proceeded to trial upon the issue presented, namely, the constitutionality of the statute, and the trial court, upon this issue, upheld the validity of the statute. In appellant’s brief not a single word is said concerning the impropriety of the remedy. In the assignments of error not a specification is made questioning the remedy invoked. In the brief of the appellant not a syllable is written that urges or even presents the question of the impropriety of the remedy. On the contrary appellant’s brief contains the admission, directly asserted, that the appellant docs not question the validity of the proceedings to disconnect respondent’s land and that by stipulation the only question to pass upon Is the constitutionality of the statute.
Appellants in this court, upon oral argument, after having their attention called by the court to the decision in Baker v. Lenhart, ante, 30, 195 N. W. 16, then, for the first time present the question of the propriety of the remedy. I am indeed puzzled to know upon what theory, in accordance with well settled rules of procedure in appellate practice, the majority opinion through its holding can justify the presentation of the question concerning propriety of the remedy after all tlie parties have stipulated their acquiescence in the remedy used in tlie trial court, and after they have distinctly stipulated that the one question presented for tlie consideration of the supreme court is the constitutionality of the statute. This sort of procedure ignores and waves aside many decisions in this state, some of which have been either signed or written by some of my associates who join in the majority opinion. A review of those decisions will not bc> attempted. It is sufficient to cite only a few. Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 597, 154 N. W. 654; Shuman v. Lesmeister, 34 N. D. 209, 158 N. W. 271; Mogaard v. Robinson, 48 N. D. 859, *763187 N. W. 142; Brisman v. Thistlethwaite, 49 N. D. 417, 429, 192 N. W. 85, 90; Malherek v. Fargo, 49 N. D. 522, 191 N. W. 951; Vannett v. Reilly-Herz Auto. Co. 42 N. D. 607, 173 N. W. 466. In the last mentioned ease Mr. Justice Christianson said “TVhy plaintiff should complain because the court determined the matter which ho asked it to determine upon the motion which he noticed 'is incomprehensible. ‘I-Ie who consented to an act is not wrnoged by it.’” In Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142 (Air. Justice Birdzell writing the opinion) the court said:
“We do not understand that any question of procedure is involved upon this appeal, for upon oral argument respondents disclaimed any contention as to the remedy and in their brief it is stated: ‘It is plain that but one point is involved: Should the city council have excluded this tract upon the showing made ? We were willing that this decision should be reviewed by Judge Nuesslc, and we now submit to the judgment of the supreme court the same question.'’ ”
In this ease the city council did not make any finding that the territory involved was not within the statutory provisions applicable for detachment thereof. On the contrary, however, pursuant to-the record and the stipulation of the parties, the city council raised solely constitutional questions, thereby admitting the validity of the proceedings pursuant to the statute and the right of detachment pursuant to the statute, hut denying the validity of the statute. Jn other words, the majority opinion, Ly failing to pass upon the constitutional questions, impliedly, for the purposes of the opinion, regard the statute as constitutional since a statute is presumed to be constitutional until held to the contrary. The majority opinion further, by its disposition of the cause, impliedly recognizes that the territory involved, pursuant to the statute, should he detached and that the city council is willing to detach the same if the statute be constitutional; yet, nevertheless, relief is denied simply because tbe parties invoked the remedy of certiorari instead of some other remedy, such as mandamus or otherwise, regardless of the fact that the parties expressly have waived any question as to the propriety of such remedy. Concerning the propriety of the remedy, I dissent upon the grounds set forth in my dissenting opinion in Baker v. Lenhart, ante, 30, 195 N. W. 16.