(dissenting).
I dissent.
The majority opinion is correct in stating that the right to appeal is statutory. How*53ever, many of the issues that are presented to this court require a judicial determination as to whether or not a particular issue is actually appealable. The right to a determination of the constitutionality of a statute is not statutory and the right to have that determination made by the Supreme Court is not statutory. In such instances, we do not ask that the clerk of the district court make a decision on appealability. The instant case is no exception.
Although this court has stated that no right of appeal is conferred by the Constitution, Reub’s Minot Camera, Inc. v. General Elec. Cr. Corp., 201 N.W.2d 877 (N.D.1972), the State Constitution contains guarantees of due process and the equal protection of the laws (N.D.Constitution, §§ 11, 13).
The majority opinion states that only invidious discrimination renders a legislative enactment unconstitutional and that § 27-08.1-06, N.D.C.C., does not so discriminate. However, any statute that denies a defendant any choice of a forum before his rights have been determined may well result in invidious discrimination. In State v. Thailand, 51 N.D. 710, 201 N.W. 680 (1924), at syllabus 5, this court said that “the Legislature may not indirectly deprive a party of due process or equal protection of the laws by imposing such conditions upon the right to appeal to the courts as to intimidate the person affected from exercising such right * * *.”
The 1975 North Dakota Legislature sought to insure the defendant in a small claims action of a choice of forum by allowing removal to the district court. The excerpt from § 27-08.1-06, N.D.C.C., cited in the majority opinion, no longer appears in the 1975 amendment to the statute. Rather, the Legislature has provided the following:
“27-08.1-04. Election to proceed in small claims court irrevocable. — Election by the plaintiff to use the procedures provided for in this chapter shall be irrevocable. In the event the plaintiff elects to discontinue the proceedings, the court shall enter its order accordingly, and unless otherwise provided in the order such dismissal shall be deemed to be with prejudice. By election to proceed in small claims court, the plaintiff waives his right to appeal to any other court from the decision of the small claims court. The defendant waives his right to appeal from the decision of the small claims court upon receiving his order for appearance as required herein, unless he elects to remove the action from the small claims court to a court which would have jurisdiction over said matter in the absence of the small claims court by filing with the small claims court and serving upon the plaintiff a notice of such removal, and filing with the clerk of the court to which said action is removed a copy of the claim affidavit and the defendant’s answer thereto along with the filing fee required for civil actions in said court, not later than forty-eight hours before the hearing set for the appearance of the defendant.” Section 27-08.1-04, 1975 Session Laws.
From the language of the amendment, it is clear that after July 1, 1975, a defendant may select a forum that guarantees appellate review.
Notwithstanding the fact that the issue of the constitutionality of § 27-08.1-06, N.D.C.C., is not properly before us on this appeal, the majority opinion volunteers to decide the issue. In the past this court has stated that it would not give advisory opinions, Wiederanders v. Wiederanders, 187 N.W.2d 74 (N.D.1971), and that questions extraneous to the decision need not be, and will not be, considered. Stockmen’s Ins. Agcy, Inc. v. Guarantee Res. L. Ins. Co., 217 N.W.2d 455 (N.D.1974).
Yet, for the sake of expediency, Hansen’s constitutional rights to due process and equal protection of the laws are extinguished without even allowing him the opportunity to be heard on the issue.
In his original appeal to this court, Hansen did raise a question as to the constitu*54tionality of § 27 — 08.1—06, N.D.C.C. However, that appeal has been completely frustrated by the refusal of the clerk of the district court to file the notice of appeal. Until we see the record of the first appeal, there is no way for us to rule whether or not a constitutional question is before us.
I would reverse the trial court, require the original appeal to be filed and certified to us, and, once and for all, rule on the constitutional question if properly raised in that proceeding. To do otherwise would be a travesty of justice.