(dissenting).
I feel compelled to dissent from the majority for the reason that in my opinion the trial court had no jurisdiction under Alaska law to hear and determine the ■election contest in the manner it was prosecuted in this case, and correspondingly this court has no jurisdiction to hear the matter on appeal. Although the appellees Rave not challenged our jurisdiction or that of the lower court to entertain this case, the issue is one of which we must take ■cognizance on our own motion as a self limitation.1 That is especially true in this •case because article V, section 3 of the constitution states that “The procedure for determining election contests, with right ■of appeal to the courts, shall be prescribed by law.”
In 1951 our territorial legislature delegated the special and exclusive authority to consider petitions for municipal incorporation of third class cities to the district court,2 superseded by the superior court after statehood. The statutory proceeding for such incorporation consists of two steps.3 First, the judge of the court to whom the petition is presented holds a hearing to determine whether it is for the best interest and welfare of the community to be incorporated as a city of the third class. This is a judicial function, for, if the judge decides in favor of the proponents for incorporation, “he shall, by order, so adjudge.” At the same time he shall also order an election to be held for the purpose of determining whether the people of the community desire to be incorporated.4
The election is then held and its result certified by the election judges to the court, and the judge thereof “shall enter an order declaring the community incorporated * * if a majority of the votes cast was in favor of such incorporation.” 5 This constitutes the second step in the incorporation process and is strictly an administrative function, bare of any judicial action by the court or judge.
Contrasted with this administrative procedure in the second phase of the incorporation of third class cities is that provided by section 16-1-4 A.C.L.A.1949, as amended by S.L.A. 1960, chapter 37 for the incorporation of a first class city. In case of the latter type city, the judge of the superior court must likewise first judicially determine that it is for the best interest and welfare of the community that it be incorporated as a city and order an election.6 After the election, the election judges must file a certificate with the clerk of the court showing the number of votes cast for and against incorporation.7
*598Now comes the contrast, for section 16-1-4 A.C.L.A.1949 makes the next step in the incorporation process not an administrative function as in the case of third class cities but one of judicial determination. I quote from section 16-1-4 as follows:
"If it shall appear from the said certificate of election filed with the clerk of the district court [superior court], as aforesaid, that two thirds or more of the votes cast at said election were in favor of the incorporation and that the provisions of law relating to incorporation have been substantially complied with, then the district judge shall, by an order in writing entered in the records of the court, duly adjudge and declare that the community in which such election has been held is and shall be deemed to be a municipal corporation under the name of ‘the city of (here insert the name),’ and the same shall from thenceforth be deemed a municipal corporation possessed of the powers and privileges hereinafter prescribed, and such other powers as may be given by law * * [Emphasis added.]
This distinction between acts of a court or judge that are judicial and those which are administrative is not one of idle words. The Supreme Court of Colorado has marked the difference well in Enos v. District Court.8 In that case it was pointed out that prior to 1921 the function of the county court in municipal incorporation proceedings was purely administrative under Colorado statute. When a petition for incorporation was presented, the court was required to forthwith appoint five commissioners to call and hold an election. The commissioners, as judges and clerks of the election filed the results of the election with, the clerk of the county court. If a majority-of the ballots cast at the election were in. favor of incorpoi'ation, the clerk was required to give public notice of the result. Certified copies of all papers and record', entries relating to the matter on file in the clerk’s office were then filed with the county-recorder and secretary of state, and, as-soon as the first officers of the city were-elected and qualified, the incorporation was; complete.
Then in 1921, the Colorado court points-out, the state amended its laws so as to' make the function of the court in the incorporation proceedings clearly judicial by-providing that when it shall appear to the-county court that the petition for incorporation was substantially conformable to> law and that the election was substantially regular and fair and a majority of the-ballots cast at such election was in favor of incorporation the court shall by order adjudge said incorporation to be complete..
As I have already demonstrated, our law-on the incorporation of third class cities, calls for a purely administrative function on the part of the trial judge by way of issuing an order of incorporation upon-the filing by the election judges of their certificate showing a majority of the ballots cast to be in favor of incorporation. No-appeal will lie from such a ministerial act, unless provided by statute,9 or unless the-act is plainly arbitrary or capricious.10’ *599We have no statute in Alaska permitting an appeal to this court from a ministerial act and the appellants do not claim that the lower court acted arbitrarily or capriciously but only that it acted erroneously.
It would appear, therefore, that this court has no authority to review this case. But, how then, one may well ask, is it ever possible to challenge the regularity or legality of an election for the incorporation of a third class city?11 The appellants thought they saw the answer in the Alaska Election Code enacted in I960.12* They argued to the court below that section 4.91 of the Code authorized them to contest the election. That section reads:
“Any defeated candidate or 10 qualified voters may contest the nomination or election of any person or the approval or rejection of any question or proposition upon one or more of the following grounds: (1) malconduct, fraud, or corruption on the part of any election official sufficient to change the result of the election; (2) when the person certified as elected or nominated is not qualified as required by law; (3) any corrupt practice as defined by law sufficient to change the results of the election.”
I have carefully examined and considered the Election Code in its entirety and have concluded that it was not designed or intended to cover municipal incorporation elections. The title of the Code, which reads: “An Act to codify and revise the law relating to state elections; to provide a comprehensive election code; and to provide for an effective date,” would lead to the reasonable conclusion that the Code is limited to state elections. The same may be said of the text of the Code for it speaks only of party primary nominating elections; elections of presidential electors, congressmen, governor, secretary of state, and state legislators and judges; and certain “propositions” and “questions” for submission to public vote, which are specifically defined but in no way related to municipal incorporation elections.
Under our constitution, the power to create and dissolve municipal corporations and to provide the procedure therefor is vested in the legislative branch of the government.13 The courts have generally held that the validity of the incorporation cannot be attacked because of irregularity in the proceedings in any action between private persons, as was here attempted, but only by quo warranto proceedings instituted by the state.14
In Alaska the writ of quo warranto has been abolished;15 but the remedy thereby previously afforded has not been lost, for in a situation such as is claimed by the appellant to exist in this case, sections 56-4-2 and 56-4-6 A.C.L.A.1949 provide that an action may be maintained by the attorney general or his representative,16 in the name of the state, whenever the governor shall so direct, against a public corporation “for the purpose of avoiding the act of incorporation * * * on the *600ground that such act * * * was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or some of them, or with their knowledge and consent * * There is wisdom in the legislature in thus removing the existence of municipal corporations from attack by private litigants. For, as the Supreme Court of Michigan observed many years ago:
“[I]t would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies; and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.”17
For the foregoing reasons I conclude that we are without jurisdiction in the case and that the appeal should be dismissed.
. See Texas & Pac. Ry. Co. v. Gulf, Colo. & S. F. Ry., 270 U.S. 266, 274, 46 S.Ct. 263, 70 L.Ed. 578, 582 (1926); Golden v. Stansbury, 155 Cal.App.2d 480, 318 P.2d 134, 136 (1957); Corbett v. Petroleum Maintenance Co., 119 Cal.App.2d 21, 258 P.2d 1077 (1953) ; Barnhouse v. Rowe, 178 Kan. 248, 284 P.2d 618, 621 (1955); In re Davis, 206 Okl. 403, 244 P.2d 554 (1952); Robertson v. Henderson, 181 Or. 200, 179 P.2d 742 (1947); Dux v. Hostetter, 37 Wash.2d 550, 225 P.2d 210, 213 (1950).
. S.B.A.1951, eh. 46, §§ 1-3 (§§ 16-2A-1 through 16-2A-3 A.C.L.A.Cum.Supp. 1957), which incorporates by reference the same incorporation procedure prescribed for the creation of second class cities as set forth in §§ 16-2-2, 16-2-3 A.C.L.A.1949.
. See note 2, supra.
. Section 16-2-3 A.C.L.A.1949.
. The words of section 16-2-3 A.C.L.A. 1949 pertinent to the subject matter of the text above are as follows:
“The judges of election shall certify to the District Court the result of the election giving the number of votes cast in favor of incorporation and the number of votes cast against incorporation * * *.
“As soon as such certificate is received by the District Court the Judge thereof shall enter an order declaring the community incorporated * * * .if a majority of the votes cast was in favor of such incorporation, otherwise the Judge shall make an order declaring the community not incorporated. * * * ”
. Section 16-1-1 A.C.L.A.1949.
. Section 16-1-3 A.C.L.A.1949.
. 124 Colo. 335, 238 P.2d 861, 865-868 (1951).
. See Faulkner v. Board of Supervisors, 17 Ariz. 139, 149 P. 382 (1915); Common School Bist. No. 58 v. Lunden, 71 Idaho 486, 233 P.2d 806, 809 (1951); Reynolds v. Justice, 228 Mo.App. 246, 66 S.W.2d 169 (1933). Cf. also Anderson v. Joseph, 14.6 Cal.App.2d 450, 303 P.2d 1053 (1956).
. West v. West Virginia Fair Ass’n, 97 W.Va. 10, 125 S.E. 353 (1924), in which it was held that, even though the trial court was authorized to hold a hearing to determine whether the statute providing for municipal incorporation had been complied with, the act of the court in. directing the entry of an order of incorporation was nevertheless ministerial,, the court acting as an agency or tribunal, representing the legislature and its findings and orders not being subject to review by an appellate court unless plainly arbitrary or capricious. To the same-effect, see Wolf v. Young, 277 S.W.2d 744, 747 (Tex.Civ.App.1955).
. Election contests were unknown to the common law. Jurisdiction in the courts to entertain such actions is purely statutory. McCall v. City of Tombstone, 21 Ariz. 161, 185 P. 942 (1919); 8 McQuillin, Municipal Corporations § 12.22, at 125 (3d ed. 1949).
. S.L.A.1960, ch. 83.
. Alaska Const, art. X, § 7.
. Morin v. City of Stewart, 111 F.2d 773, 775, 129 A.L.R. 250 (5th Cir. 1940); Williams v. McClellan, 119 Cal.App.2d 138, 259 P.2d 12, 15 (1953); Enos v. District Court, 124 Colo. 335, 238 P.2d 861, 868-869 (1951); Bishop v. Shawnee & Mission Twps., 184 Kan. 376, 336 P.2d 815, 818 (1959); 1 Antieau, Municipal Corporation Law § 108 (1958).
. Section 56-4-1 A.C.L.A.1949.
. Section 56-4-6 A.C.L.A.1949 required the “prosecuting attorney” to commence the action directed by the governor to avoid an act of incorporation; but upon the advent of statehood a department of law was created, with an attorney general as its principal executive officer, to represent the state in all civil actions in which the state is a party. S.L.A.1959, ch. 64, § 9 (§ 2A-1-9 A.C.L.A.Cum.Supp. *6001959). The attorney general, with the governor’s approval, is authorized to engage attorneys-at-law to appear for him. in “any court distant from the capital.” S.L.A.1959, ch. 128, § 1 (§ 9-1-16 A.C.L.A.Cum.Supp.1959).
. Clement v. Everest, 29 Mich. 19, at 22 (1874), cited and quoted from, with approval by the Supreme Court of Kansas in the case of Atchison, T. & S. F. Ry. v. Wilson, 33 Kan. 223, 6 P. 281, 284 (1885).