(dissenting).
We had the opportunity in the case of State ex rel. Olson v. Thompson, 248 N.W.2d 347 (N.D.1976), to apply § 47 of the North Dakota Constitution with a sense of balance and practicality, and in accordance with precedent. Leu v. Montgomery, 31 N.D. 1, 148 N.W. 662, 663 (1914), pointed out that “ * * * by section 47 of the Constitution each branch of the Legislature is made the judge of the election and qualifications of its members, and the courts, therefore, have no jurisdiction in such cases.” If there is anything that is clearly mandatory in all of this, it is § 47 of the Constitution.
In State v. District Court of Sixth Judicial Dist., 67 N.D. 196, 271 N.W. 137, 143 (1937), this Court said: “It is well settled that the courts should not assume authority to take any steps in legislative contests unless clearly authorized, and then only to the extent specifically given.” State v. Quam, 72 N.D. 344, 7 N.W.2d 738 (1943), interpreted § 47 to mean that each House of the Legislature is the “sole judge” of election returns and the qualifications of its members.
This Court ignored these precedents and chose instead to follow the statement in State v. Meyer, 20 N.D. 628, 127 N.W. 834, 837 (1910), that: “This court does not attempt to say what members shall be seated. It is simply passing upon the question of law presented * * * ” and “It is unnecessary for us to consider whether our decision may have any effect upon the action of the Senate * * *.” My problem was then and is now that I cannot ignore the fact that our “decisions” do have some effect upon the action of the House. This is very vividly illustrated in the instant case by the Journal of the House for the Forty-fifth Legislative Assembly’s organizational session. There, at pages 4 through 9, we see, not in an informal colloquy but in formal statements by the leaders of the House, comments that indicate that we left the definite impression by our previous decision that the House is only the “final” judge, not the “sole” judge of who shall be seated, and that either the Supreme Court or the Secretary of State had already made the decision for the House.
It may not be “judicial” to say “I told you so,” but I haven’t been a judge long enough to forget that I should also be practical. Lest I be misunderstood, I reiterate that when a challenged election result involves members of the Legislature, the only function of the courts, the election or canvassing boards, and the Secretary of State is to *250facilitate the determination to be made by the House or the Senate. It makes no difference that the House or the Senate chooses to leave the decision to the Court or to the Secretary of State. Section 47 of our Constitution prohibits them from doing so.
Because this decision will be precedent for election disputes involving non-legislative offices, I choose to go along with Justice VOGEL’s dissent because it would disenfranchise fewer voters. If we had decided Olson v. Thompson, supra, in accordance with my thoughts, I would now have agreed with Justice SAND.