(Special opinion, concurring in result, dissenting on jurisdiction).
In my opinion, this court should not have exercised its original jurisdiction. Neither the subject matter as presented, nor the parties, come within § 86 of the North Dakota Constitution (new Judicial Article), or § 27-02-04, North Dakota Century Code, nor do they meet the requirements of § 16-01 — 10, NDCC, because the petitioner made no showing that an error, wrongful act, or neglect of duty had occurred or is about to occur.
The petitioner’s primary complaint, in effect, was that the recount board in canvassing the absentee ballots followed the letter of the law, which is claimed it should not have done. Compliance with the law cannot constitute “error,” “neglect,” or a “wrongful act” so as to rely upon § 16-01-10, NDCC, for jurisdiction. The petitioner claimed and argued that the statutes relating to the counting of absentee ballots should have been construed by the supervising district judge so as to count absentee ballots in precincts where voting machines were used even though the ballots did not have the official stamp or initials, in spite of the specific provisions of § 16-13-01, NDCC.
Section 16-13-01, NDCC, as is material here, provides:
“In the canvass of the votes at any election, a ballot shall be void and shall not be counted if:
“1. It is not endorsed with the official stamp and initials as provided in this title; . . .”
A related pertinent provision of § 16-18-17, NDCC, is as follows:
“. . . They [election board] shall take out the ballot or ballots contained therein without unfolding the same, or permitting the same to be opened or examined, and after endorsing the same as other ballots are endorsed, they shall deposit the ballot in the proper ballot box and show by the records of such election that such elector has voted. . . .”
I don’t believe any question can be seriously raised that the terms “endorsing” or “endorsed” do not mean officially stamped and initialed.
The petitioner also contended that the provisions of §§ 16-18-20, 16-18-17, and 16-13-01, NDCC, should be construed as being directory rather than mandatory in precincts where voting machines are used, and that the absentee ballot should be coun*240ted regardless of the absence of the stamp and initials.
The statutes in question, however, are clear and unambiguous and leave little, if any, room for construction. They make no exception in instances where voting machines are used.
The petitioner presented no facts disclosing the procedure followed by the election board in processing the absentee ballots. Such facts may have been helpful, and possibly could have some bearing on the principal issues involved here. I must assume that the petitioner had reason not to present any facts or evidence. Significantly, during oral argument, it was stated (and not contradicted) that the absentee ballots were not placed in the ballot box (none being present) but were kept at different places in the voting precinct. This in my view does not constitute a basis for giving the statute in question a directory rather than a mandatory construction. It, however, indicates to me that if the action had been brought in a quo warranto proceeding, or some other comparable action, various facts which may have a bearing on the situation would have been developed.
The position taken and the arguments made in this case should have been made and raised by the petitioners in State ex rel. Olson v. Thompson, heard earlier. We are in no position to speculate as to why this argument wasn’t raised at that time.
The district court, Judge Beede, in supervising the recount was not acting as a court, as that term is normally understood. By way of illustration, even though not precisely comparable, many district courts are required to supervise or administer trusts, but this does not change the supervision aspects by the judge into a court. It might be argued that because we exercised jurisdiction in the Olson v. Thompson case in early December we should do so here. However, in the Olson case the subject matter was an order of the district court prohibiting the State Canvassing Board from performing an administrative duty. The jurisdiction of this court existed as a result of the ex parte writ issued by the district court by virtue of the provisions of § 86 of the new Judicial Article and § 27-02-04, NDCC. The writ of the district court constituted an interference with the proper function of the State Canvassing Board. Normally, even under those conditions, the court would generally be reluctant to exercise its original jurisdiction and would require a request first made to the district court to rescind the writ of prohibition. State v. Lynch, 138 N.W.2d 785 (N.D.1965). But because of the time element, such procedure was not required. If this court had insisted upon such procedure, the election process would have been interrupted, preventing the results from being known by a certain time, which would have left the election process incomplete at the time the House of Representatives had its organizational meeting. At the earlier proceedings, State ex rel. Olson v. Thompson, the question of the absentee ballots was not raised.
Since the Thompson case has been heard and decided, the “dispute” between Kuhn and Wentz was presented to the House of Representatives after the election process had been completed. The “dispute” was presented to the Legislature by a motion and the question pertaining to the counting of the absentee ballots without the endorsement or initial was made in connection with the motion. This case is, therefore, readily distinguishable from the Olson v. Thompson case, because in the prior case the election process was still underway, and was being interrupted by a writ of prohibition by the district court.
In my opinion, once the subject matter has been presented to the Legislature under the provisions of § 47 of the North Dakota Constitution, the courts, including the supreme court, may no longer exercise jurisdiction over the same subject matter.
Even though the leaders in the House entered into an agreement of some kind which is subject to construction as to specifically what it was meant to accomplish, it is nevertheless a firm principle of law that jurisdiction cannot be conferred by consent or agreement, which in my opinion applies *241to the agreement reached by the leadership in the House.
Referring again to the statute which specifically provides that ballots not officially stamped or endorsed are deemed void and are not to be counted, the construction contended by the petitioner would require complete disregard for the language in the statutes, because the language is clear and unambiguous. I would further note that the statute would have to be declared unconstitutional to reach the result prayed for by the petitioner. In a somewhat similar situation, § 16-01 — 11, NDCC, requiring residence and postoffice and an affidavit by the circulator, was challenged as being unconstitutional in that it violated the provisions of § 25 of the North Dakota Constitution. This court, in Wood v. Byrne, 60 N.D. 1, 232 N.W. 303 (1930); Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741 (1931); and Dawson v. Meier, 78 N.W.2d 420 (N.D.1956), held that the statutory provisions were valid, even in the face of the provisions of § 25 of the Constitution, which provided, in part,
“No law shall be enacted to hamper, restrict, or impair the exercise of the rights herein reserved to the people. . . ."
The rights referred to were the initiative and referendum, which employ the petition to accomplish its purpose.
In my opinion, the legislature not only has a right, but has a duty, to enact laws preserving the integrity of the free and open election process.
Based on case law, I am firmly convinced that the question of jurisdiction should be, and may only be, decided on principles of law. Any other reason would be inadequate.
This court in a number of instances has said that it will exercise its superintending power only under conditions that are tantamount to a denial of justice. Stormon v. District Court of Pierce County, 76 N.D. 713, 38 N.W.2d 785 (1949); Schaff v. Kennelly, 69 N.W.2d 777 (N.D.1955). This court has also said that it will not exercise its extraordinary powers except when there is no other adequate remedy at law. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849 (1947). There is at least one other adequate remedy at law, namely, quo warranto.
Petitioner has not met the requirements laid down by this court which need to be met before it will exercise its original jurisdiction.
If the petitioner (Kuhn) had the desire to proceed through the judiciary, notwithstanding § 47 of the North Dakota Constitution and notwithstanding the fact that the question had been presented to but not accepted by the House of Representatives, and if any court were to exercise jurisdiction, the proper action would have been quo warranto, which is designed to resolve, amongst other things, election issues.
For these reasons, I would have denied the petition requesting this court to exercise its original jurisdiction.
However, because the majority of this court has reached the conclusion that this is a proper case for the court to exercise jurisdiction and has assumed jurisdiction, but some members have reached different results, I deem it advisable to express my position on the merits. Without compromising my position on the question of jurisdiction, but merely recognizing that jurisdiction has been assumed, I concur in the results reached by the opinion written by Justice PAULSON and signed by Chief Justice ERICKSTAD.