(concurring). In view of the repeated constructions of the statute (Laws 1921, chapter 92) by this court, to the effect that the legislature had thereby committed to the local legislative bodies all questions concerning the detachment of territory from municipalities and had provided for no judicial review, and in view of the subsequent legislative recognition of this construction as being correct (Laws 1929, chapter 172). I am unable to see how the record in this case presents a constitutional question that this court should consider. (The 1929 amendment above referred to is, of course, not applicable to this case, as this case had been tried below and submitted here before it took effect, hut it provides for the continuance of the rulo of nonreview as to all municipalities of three thousand population or more.) It seems obvious to me that, if the court should consider the act constitutional, its opinion would be no more than advisory, since the legislature has provided no means for making effective a judicial determination that certain territory should be excluded. On the other hand, if the court should consider the act to be unconstitutional, the petitioner would be *767wholly without any remedy to effect a detachment of his property. That matter, as stated, has been left to the final determination of the local legislative body through ordinance. Hence, it seems to me that there is no occasion for discussing whether or not certiorari is an appropriate remedy where it is clear that the legislature has provided no .judicial remedy. It seems equally beside the real question in the case to determine whether or not there is an attempt on the record to- present a constitutional question. Neither, in my judgment, is there any occasion for applying' terms of reproach to characterize a result which is dictated by sound principles of constitutional lawn This court should not render advisory opinions upon constitutional questions; neither should it pass on such questions affecting statutes, unless the rights of a litigant depend upon their validity. Conceding the validity of the statute in question, no right is given to compel a different result on the plaintiff’s petition. Says Cooley on Constitutional Limitations, -3th ed. p. 396 :
‘‘Tn any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the. constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which can not be disposed of -without- considering it, and -when consequently a decision upon such question will be unavoidable.”
If the petitioner is injured, lu: is injured because of the erroneous action of a local body and because the statute provides for no review of the local legislative action upon a question that is primarily legislative in character. He is not deprived of any constitutional right.
The distinction between this ease and Mogaard v. Robinson, 48 N. D. 839, 187 N. W. 142, is obvious. Tn that case no constitutional question was attempted to be raised by either party, and, as the majority of the court read the retorcí, both parties sought, both in the court below and in the supreme court, to obtain an interpretation of certain language in the statute and specifically submitted the question in both courts. It is one thing to interpret a statute at the instance of parties-who stipulate, to be bound by the construction but quite, a different thing (o decide a constitutional question which arises only he-*768cause the parties once, mistakenly, hacl a theory that such constitutional question was involved. I am not aware that courts have so far departed from the time-honored principle of reluctance to determine the constitutional validity or invalidity of statutes as to be willing to do so whenever parties might stipulate that such a question is involved whether it is so in fact or not. In fact, however, the appellant is here contending that the judgment of the court below is erroneous because the statute does not provide for judicial review of the determination of the local body upon a petition for detachment of territory. This contention, in my opinion, is clearly right and must be supported.