(concurring in part and dissenting in part).
I concur with the philosophical concepts on constitutional rights and privileges expressed in Justice Vogel’s opinion pertaining to transfer of women prisoners to out-of-state institutions based solely upon the sex of the prisoner. I would fully agree with the opinion if the constitutional question were properly before us.
However, I do not agree with the inference that the constitutional question was properly raised or is ripe for our determination as a result of the petition for a supervisory writ challenging the district judge’s right to insert the language, “and in no other place,” in the sentence of Cora Kroep-lin.
The record of the trial court, as represented to us by the Attorney General, does not contain anything which could be considered as giving rise to a belief that the judge’s authority was being questioned as to his right to designate the place of imprisonment under § 12.1-32-02, North Dakota Century Code. Neither has any factual basis been presented which would give the district judge sufficient legal interest to challenge the constitutionality of this section or § 54-21-25, NDCC.
If anyone has the right to challenge § 54-21-25, NDCC, it is Cora Kroeplin. She also has the right, privilege, and prerogative to decide whether or not she wishes to challenge.
The principle of law that only those who have a direct interest in or are affected by a statute may challenge its constitutionality has been firmly established.
We have held that a litigant may assert only his own constitutional rights unless he can present weighty countervailing policies. State v. Woodworth, 234 N.W.2d 243 (N.D.1975); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed. 524 (1929); State v. Gamble Skogmo, Inc., 144 N.W.2d 749 (N.D.1966). Therefore, legal logic dictates that if a litigant may assert only his own constitutional right, then a non-litigant, which would include the trial judge, would not have the right to challenge the statute (§ 54-21-25, NDCC). The mere fact that the trial judge heard the case and was in a position to impose sentence does not give him the right to challenge the constitutionality of the Act.
This Court has also held that a person may question the constitutionality of a statute only when and insofar as it is sought to be applied to his disadvantage and the one attacking the constitutionality is not a champion of any rights except his own. Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943). For other cases stating the same principle of law see 4 Dakota Digest, Constitutional Law
*634We have also held that the question of constitutionality will only be entertained by this Court if it was raised in the lower court or adequately preserved. In this instance the record in the lower court, as represented to us, does not give the slightest hint that the constitutionality of § 54-21-25, NDCC, was even suspected of being questionable.
In this case the constitutional question surfaced in the return to the petition for a supervisory writ.
The United States Supreme Court, in Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972), said:
“It is axiomatic that the federal courts do not decide abstract questions posed by parties who lack ‘a personal stake in the outcome of the controversy.’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, [677] (1962); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947, [962] (1968).”
The Court, in denying the constitutional challenge, observed that the parties did not allege any particulars that made the requirement (which was being challenged) other than a hypothetical burden. This concept and principle applies equally well to the present case. There is nothing in the record which indicates that the district judge’s authority was in any way impaired, impinged or frustrated. His right to sentence under § 12.1-32-02, NDCC, had not been impaired. I am unable to find any authority for the Judge’s insertion of the words “and in no other place.”
Cora Kroeplin, the defendant in the criminal action, has been used as a mere pawn (without her consent) to reach a constitutional question which she has not raised even though she is the party affected.
Volume 16, C.J.S. Constitutional Law § 96, page 332, states:
“A court should proceed with reluctance to set aside legislation as unconstitutional on grounds not properly presented. Accordingly, the invalidity of a statute, in order to be relied on, must ordinarily be specifically raised by the pleadings.
“This is not an inflexible rule, however, and in some instances constitutional questions inherently involved in the determination of the cause may be considered even though they may not have been raised as required by orderly procedure.”
The cases listed under “Not an inflexible” do not come close to the situation in this case.
The principle stated in the first sentence has been so firmly established that there is no need to recite the numerous cases which gave rise to this concept.
In 16 Am.Jur.2d, Constitutional Law § 119, page 310, the principle of the law is again stated:
“The constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. Before, a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights.”
The same authority continues:
“The corollary to the general rule is that one who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality.”
Section 121 of the same states:
“To meet the test of interest requisite to challenging the constitutionality of legislation, the person seeking to make the challenge must show that he is directly affected by the legislation in question.”
The same authority, in § 122, states:
“No one can obtain a decision as to the invalidity of a law on the ground that it impairs the rights of others, nor may one excepted from the operation of a law attack it, for one attacking the constitutionality of a statute is not the champion of any rights except his own.”
The same authority, with reference to public officers, in § 128, states that:
“Under the general principle that the constitutionality of a statute cannot be questioned by one whose rights are not affected thereby and who has no interest *635in defeating it, the question has arisen as to whether a public officer has such interest as would entitle him to question the constitutionality of a statute and to refuse to comply with its provisions. It has generally been answered in the negative.”
Ostensibly, the Judge used the sentencing provision by adding the phrase “and in no other place” to challenge the constitutionality of § 54-21-25, NDCC, on the basis that he has taken an oath to uphold the constitution. (This was his representation at oral argument.) If the right to challenge the constitutionality of an Act depends on whether or not the officer has taken an oath to support the constitution, we would have an endless list of officials who may challenge the constitutionality of an Act. I would also suggest that the courts will be preoccupied with self-styled constitutional questions if this were the rule of law. Even if it were to apply only to the judiciary, I can visualize the judges of district courts, judges of the county courts with increased jurisdiction, judges of the county courts, judges of the county justice courts and judges of the municipal courts challenging various statutory provisions as being unconstitutional as it may apply to some of their functions, not as litigants but as administrators of the provisions of the law.
Under this concept, a judicial officer may, sua sponte, make a decision so as to deliberately raise a constitutional question as it may relate to the actions that may be taken by another administrative body. I think this would be improper. If this were permitted this Court would then be devising one set of rules to be followed by judicial officers and one set of rules to be followed by all other persons and officers even if the particular right does not affect the functions of the judicial officer. In this instance, the provisions of § 54-21-25 do not interfere with the judicial functions of the trial court.
Finally, the question of the validity of § 54-21-25, NDCC, can be adequately raised by Cora Kroeplin, who would have a direct interest in the outcome and who would have the prerogative of determining whether or not she even wishes to challenge the constitutionality. It may well be that Cora Kroeplin would prefer serving her sentence elsewhere than in the North Dakota Penitentiary.
This Court has had several occasions in which it held that the judge loses jurisdiction upon sentencing a defendant to the State Penitentiary. John v. State, 160 N.W.2d 37 (N.D.1968). The same conclusion was reached in State v. Gronlie and State v. Heck, 213 N.W.2d 874 (N.D.1973). This supports the proposition that the judge after sentencing to the State Penitentiary has lost jurisdiction, except under Rule 35, North Dakota Rules of Criminal Procedure. The language, “and in no other place,” seems to be a deliberate effort to bypass the decisions of this Court in the foregoing cases so as to retain some jurisdiction.
The only and basic question presented in the petition for a supervisory writ is whether or not the trial court had authority to include in the sentencing judgment the underscored words, “be imprisoned in the North Dakota State Penitentiary . and at no other place . . .” The constitutional question was raised only by the trial judge in defense of his action.
The trial judge did not point to any law which gave him the authority to insert those words.
Public interest, upon which the majority opinion seems to rely, has not been a ground upon which a constitutional question has been considered.
Public interest has been a factor in determining whether or not the Supreme Court should or should not exercise its original jurisdiction, but public interest does not and has not heretofore constituted grounds to entertain a constitutional question either before this Court or the United States Supreme Court.
But as I said in the beginning, with reference to the legal concept of rights and privileges, I concur in the philosophical expressions in the opinion of Justice Vogel, *636but I would not have reached the constitutional question.
PAULSON, J., concurs.