(further dissenting). Upon a mere technicality, without precedent in law and without basis in reasoning, as I view it, the majority opinion has reversed the action of the trial court, dismissed the writ and refused to consider tire only question properly before this court, namely, the constitutionality of the statute involved.
It must be conceded that such disposition of this cause upon a mere technicality has no other effect than to require the parties to perform the useless ceremony of again initiating by certiorari this very proceeding in the trial court. The only effect of the majority decision is the creation of delay and additional expense.
After the technical construction of the statute upon certiorari made by the majority decision in December, 1922, in the case of Baker v. Lenhart, ante, 30, 195 N. W. 19, the legislature, in March, 1923, and before this cause was argued in this court, enacted specific legislation concerning a proceeding by certiorari. This legislation requires the courts to review, through certiorari, the findings of a city council, in a city having a population of less than 3,000, in .a proceeding to detach farm property. Laws 1923, chap. 172. The Act applies to the defendant city and to the identical question presented in this case. This statute was enacted on March 6th, 1923. ■ It became a law on July 1st, 1923. It is now a law while this case is pending before this court and during a time when the appellant has raised for the first time in this court a procedural objection which has been entirely obviated in any event by the statutory provision.
When this cause was argued in the trial court no thought was present in the minds of any of the parties to present any procedural or juris*769dictional questions. Tbe defendant submitted to tbe jurisdiction of tbe trial court and invoked the jurisdiction of the trial court for the purpose of determining tbe constitutionality of the statute involved. The defendant expressly admits tbe facts alleged in plaintiff’s complaint. When tbis cause was briefed for tbis court tbe parties, by stipulation, waived every question of procedure, expressly stipulated that the plaintiff bad fully complied with all of tbe statutory requirements relating to tbe disconnection and exclusion of tbe farm lands involved and stipulated that tbe sole and only question for determination by tbis court was tbe constitutionality of tbe statute involved, .namely, Laws 1921, chap. 32, now Laws 1923, chap. 184. Upon the argument of tbis cause through suggestions made by members of tbis court concerning tbe decision in Baker v. Lenbart, supra, wherein the writer dissented, tbe appellant, ignoring tbe position taken by it in the trial court and in violation of its stipulation, for tbe first time raised before this court tbe propriety of tbe remedy of certiorari.
Tbe majority opinion upon its petition for rehearing attempts now to justify its technical decision by asserting that there is'more involved upon this appeal than tbe mere question of tbe propriety of the remedy ; that tbe jurisdiction of tbe subject matter is involved and tbe question whether or not upon tbe record tbe trial court was justified in granting any judicial relief whatsoever. In support of its position thus stated tbe majority opinion quotes tbe statute, § 7447 Comp. Laws, 1913, which simply provides that when certain objections, such as concerning jurisdiction, are not taken by demurrer or answer, the Same are deemed to be waived excepting only tbe objection to the jurisdiction of tbe court. Tbe majority opinion further cites two foreign cases: One, a case in 108 C. C. A. 429, 186 Fed. 451, to the effect that tbe question of tbe jurisdiction over the subject matter and the competency of tbe trial court to grant relief may always be raised in the appellate court. In that case a suit in equity was prosecuted in a subject matter where there existed an adequate remedy at law. In the other case, from Indiana, 156 Ind. 450, 60 N. E. 150, it was bold that the Circuit Court bad no jurisdiction upon an appeal made from the board of commissioners for the reason that its order was not appealable and hence that tbe question of tbe jurisdiction of such circuit court could be raised at any stage of the proceedings and in tbe *770appellate- court. Upon tbe precise technical rule thus urged by the majority opinion not a single decision of this court is cited. The extremity to which the majority opinion is reduced in order to bolster its technical decision is obvious.
Furthermore, the futility of the argument made concerning the right to raise the question of the jurisdiction of the lower court over the subject matter and of the sufficiency of the complaint to grant relief, in the appellate court, regardless of what has occurred in the trial court, is made evident by the decision of this court, written by Mr. Justice Christianson. Lynch v. District Ct. 48 N. D. 433, 185 N. W. 303. In that case, an original application was made to this court for a writ to prohibit the trial court from proceeding xxnder a writ of certiorari. Mr. Justice Christianson said, or qxxoted with approval, the following:
“Jurisdiction does not depend upon the correctness of the decision made. . . . ‘Jurisdiction of the subject-matter is the, power to deal with the general abstract question, to hear the particular facts in any ease relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power. It is not confined to cases in which the- particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court, by tbe law of its organization, to deal with the abstract. Nor is tbis jurisdiction limited to making correct decisions. It empowers the coxxrt to determine every issxxe within the scope of its authority, according to its own view of the law and the evidence, whether its decision is right or wrong.’
,. “The district court has jurisdiction to issue writs of certiorari to justices of the peace aixd other inferior courts, officers, boards, or tribunals. N. D. Const. § 103; Comp. Laws, 1913, § 8445.”.
..Again, in the case at bar the facts of the, complaint are admitted by the defendant. These facts, so alleged and admitted, show without question that the land affected is entitled to he detached pursxxant to the statute. The defendant- does not deny the right of detachment if the statute involved he constitutional. Does the majority opinion hold that a writ of prohibition might have properly been granted to have restrained the issuance of a writ of certiorari in tiffs case by tbe trial court ? ,
*771To some extent a few other decisions of this court may be cited. In Hart v. Wyndmere, 21 N. D. 383, 131 N. W. 271, Ann. 1913D, 169, an action involving equitable considerations was tried to a jury concerning the payment of certain city warrants. The appellant, by stipulation of the parties, was made a party defendant. The appellant answered and issues were made. The appellant fully and freely litigated its rights upon the merits in the trial court. Upon appeal the appellant for the first time raised the question of the jurisdiction of the trial court over its person and over the subject matter litigated. This court held that Avant of jurisdiction over the person or subject matter can be urged at any stage of the proceedings; but that it was significant that Avant of jurisdiction avrs not raised until after the trial of the action - on the merits and a determination therein made adverse to the appellant; that the appellant’s contention Avas unsound and could not he, upheld; that to hold otherwise would be to make a farce of court procedAire; that defendant elected to litigate his case Avitli the parties in the lower court and Avas bound by the results and could not be heard to complain because of the adverse decision.
In Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 31 N. D. 597, 154 N. W. 654, the board of railroad commissioners ordered the, construction of a certain crossing over railroad tracks in P'ingal. The railroad appealed to the district court. In that court no question concerning the jurisdiction of that court over either the subject-matter or the parties AA'as ever raised. A decision Avas rendered upon the merits against the board. Upon appeal the board for the first time sought to question the jurisdiction of the commissioners and of the district court to hear and determine the controversy. The supreme court upon appeal held that, “this proceeding-stood exactly as though t-hc parties-had formulated their issue fof decision and thereupon submitted the same to the district court for trial and decision upon the merits, and Avith that court having jurisdiction at law of the subject matter so submitted for arbitrament; upon proper proceedings unquestionably, that court Avould haA’e had jurisdiction to determine and adjudge, that this railroad company should build this crossing over its tracks at the place in question. That being so, as a matter of law, Ave are not concerned in the stops leading up to the submission of that, question to that court on the merits, further than to know that the same was done and *772without any objection thereto, or any question made as to the jurisdiction of that coirrt over the subject matter. With that ascertained, jurisdiction is beyond challenge for the first time on appeal in this court.”
In Vannett v. Reilly-Herz Auto. Co. 42 N. D. 607, 173 N. W. 466, plaintiff commenced an action to recover $250.00 and attached certain automobiles. A bank set up a third party claim to the automobiles. A hearing was had. The trial court made its order and judgment sustaining the title of the bank to the automobiles. Plaintiff appealed. Before the supreme court plaintiff complained that the bank had no Tight to move for discharge of the attachment; that it was necessary Tor it to assert its right by independent action for the possession or -conversion of the property. The supreme court held, through the opinion of Mr. Justice Christianson, viz.: “It is unnecessary to determine ■the procedural question raised. Manifestly the appellant is in no position to predicate error upon the method of procedure; for he formulated the procedure. The Scandinavian American Bank merely acquiesced in the procedure proposed by the plaintiff. Why plaintiff should complain because the court determined the matter which he asked it to determine upon the motion which he noticed is incomprehensible. Tie who consents to an act is not wronged by it.’ Acquiescence in error takes away the-right of objecting to it.’ ” See Malherek v. Fargo, 49 N. D. 522, 191 N. W. 951.
In Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 85, a writ of certiorari was issued. It concerned certain criminal proceedings had before a justice of the peace. On the return day a demurrer was interposed upon the ground that the district court had no jurisdiction over the subject matter or the person, but upon overruling the demurrer, counsel for the defendant, in open court, specifically waived the issuance of a writ of certiorari and submitted entirely the matter in issue to the district court. Upon appeal to this court the question of jurisdiction and the propriety of the remedy were invoked by the -defendant. This court, through the opinion of Mr. Justice Christian-son, in part said:
“It is contended, however, on this appeal that the action of the justice of the peace is not reviewable on certiorari, and that the district court erred in granting such writ.”
“If in this case the hearing had proceeded and the justice of the *773peace had made an order holding the defendant to answer, it would have been the duty of the justice of the peace to have made a return, and transmitted all the papers in the case to the district court. And it is clear, under the undisputed facts here, that if such order had been, made the defendant in such criminal action would have been entitled to be released upon habeas corpus. Comp. Laws, 1913, § 11,373, The district court would have had jurisdiction to issue the writ. And upon application for such writ it would (under the undisputed facts, in this case) have been its unquestioned duty to do so.”
“The ordinary presumptions on appeal are applicable on appeal from a judgment in a certiorari proceeding’. 11 C. J. 221. The appellate court will only consider the errors which are urged before it and specifically pointed out, and the review is confined to matters or objections urged below. 11 C. J. 221.”
“When the record presented on this appeal is viewed in light of the fundamental rules above referred to, we are of the opinion that the question of the propriety of the remedy is not before us.
In Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142, the trial court in a certiorari proceeding refused to disturb the action of a city council in not recognizing a petition for the detachment of farm territory. Upon appeal to this court the propriety of the certiorari proceeding was recognized and the order of the trial court reversed with directions to enter an appropriate judgment for detachment of the territory involved. In that case the court said, “We do not understand that any question of procedure is involved upon this appeal for-upon oral argument respondent 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 Nuessle and we now submit to the judgment of the supreme court these same questions.’ ”
If the proceeding for the detachment of farm territory is wholly a legislative proceeding that permits of no judicial review then this court should determine the merits and hold the statute involved to be unconstitutional. If the majority decision now is right, the reasoning of the decision in the first case of Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 758, a mandamus action, was wrong and should be *774expressly overruled. If again, tlie majority decision is now right, the decision and reasoning of the court in the second case of Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142, a certiorari proceeding, is wrong and should expressly be overruled. Likewise, the same may be said concerning the case of Lincoln Addition Improv. Co. v. Lonhart, ante, 25, 195 N. W. 14. If the statute providing for judicial review is unconstitutional then it is time for this court so to state and hold. Otherwise, the statute stands with the presumption of constitutionality. Otherwise confusion worse confounded exists for the trial bench and the bar of the, state. It must be conceded if the statute involved is still a statute operative upon the courts, that the trial court, in some sort of a proceeding, had jurisdiction over both the subject matter and the person to compel and enforce the performance of a statutory duty. The parties by consent and by action submitted to that jurisdiction of the trial court. The appellant after so submitting to th'e jurisdiction, received an adverse decision. Now it complains concerning the jurisdiction which it conceded and invoked. It follows that the majority opinion in this case has simply denied the determination of the uiorits and of the constitutional question upon merely a procedural ground contrary to and without regard for former holdings and decisions of this court. It is certainly now a strange rule to invoke, in view of the decisions of this court, namely, — that a party may he heard to say in the district court that it, the trial court, had jurisdiction and then after invoking that jurisdiction and securing a decision, which happens to he adverse to its contentions, upon appeal in this court for the first time say that the trial court did not possess jurisdiction.
Accordingly, in my opinion, the determination thus made hy the majority decision is a reproach to the administration of justice. With full and due respect for the opinions of nay ¿ssociates I, nevertheless, must and do earnestly protest against the majority determination thus made upon a mere technicality.
The answer to the concurring opinion of my associate, Mr. Justice Birdzell. may he said to be contained in the court’s opinion,, written by himself, in the case of Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142 ; in that case it seemed to be, and was, the proper thing to review judicially the action of the city council. If, then, the action of the city council was legislative, as now, the concurring opinion fur *775new reasons seeks to establish, it seems difficult to apprehend how, then, the court possessed jurisdiction to judicially review, even through stipulation of the parties, and how, non; the.coTirt possesses no jurisdiction by a similar stipulation so to judicially review. If the quotation concerning constitutional limitations is applicable now} it was applicable then; if the petitioner is injured now without recourse nor remedy, the petitioner then was so injured.
But, my associate, at the tail-end of his concurring opinion, states that the distinction between this case and Afogaavd v. Robinson is obvious. It might be well again to show how obvious the distinction is by quoting, in the language of the appellant, the questions for decision by the court in that ease as follows, to wit: “The questions for decision by the court are: (a) Is certiorari the proper proceeding? (b) Are the determinations of fact and law by the city council subject to review? If so, to what extent? (c) What construction is to lie given that part of the statute providing for the exclusion of. unplatted lands where a sewer outlet extends upon or over the same?” Further, it may be well to call attention to the brief of respondent in such case, namely, the Nogaard Case, wherein on page. 21 an attack is made upon chap. 32, Laws 1921 (involved in this action) upon the ground that the same was special or class legislation in violation of the State Constitution. Also, attention may he calk’d to a case cited by flic appellant in such Alogaard Case, namely, the Red River Valley Brick Co. v. Grand Forks, 27 N. D. 8, 145 N. W. 725, wherein the following language from such case concerning’ judicial determination is quoted: — “The question as to whether the power conferred upon the city council has been legally exercised, whether the statute under which it acts is constitutional, what the effect of any irregularities or omissions in pursuing the method prescribed by the statute may be, and other similar questions, are for judicial determination. I am pleased to note that at least and at last one member signing the majority opinion of this court has" expressed an opinion partially at least upon the merits of the cause submitted to this court.”