(dissenting).
I dissent from the opinion of Justice Vo-gel.
The proposed opinion either fails to give full credit to § 28-32-21, North Dakota Century Code, “Review in Supreme Court,” which incorporates § 28-32-19, or seemingly misconstrues its provisions.
The appeal to the Supreme Court is on the same issues as those appealed to the district court. The decision of the district court does not change the scope of review on appeal to the Supreme Court. An appeal to the Supreme Court of an administrative agency’s decision, which was first appealed to the district court, can be compared to a change of venue. The issues and the records remain the same except the review is conducted by another judicial body.
The issues raised on appeal to the district court must be limited to the record made before the administrative agency and as presented to the district court [additional evidence by stipulation notwithstanding]. The issues presented to the district court are the same issues which will be reviewed by the Supreme Court on appeal. It naturally follows that the decision of the district court does not give rise to new issues. See the well-reasoned decision in Reserve Mining Co. v. Herbst, 256 N.W.2d 808 (Minn.1977), where the appeal is governed by a statute substantially the same as ours. The district court does not try the case de novo, *134but rather on the record, and therefore the Supreme Court, on appeal, is not governed by the district court’s decision. No deference to the trial court’s decision and reasoning other than that given to another appellate court is appropriate. Under the proposed opinion the decision of the trial court would determine the issues before the Supreme Court on appeal, which is not in accordance with § 28-32-19, NDCC.
We are well aware of the criticism that it is not proper to change the rules in the middle of the game. Likewise, it is improper to change issues after the hearing has been held before the administrative agency.
Out of fairness to the administrative agency, the constitutional question should be raised at that level so as to give all parties the opportunity to present evidence which would be material to the ultimate decision of the constitutional question.
The fact that neither party on appeal to the district court questioned or challenged the propriety of raising the issue of the constitutionality of a statute which was not raised or disclosed in the record of the administrative hearing should not be controlling. Jurisdiction cannot be conferred by consent or agreement. Neither can jurisdiction be acquired through silence. Similarly, the constitutionality of a statute is not properly before the court merely because the parties may have agreed to submit the constitutionality of the statute on appeal. A challenge of the constitutionality of a basic statute should not be permitted on appeal unless it was actually raised at the hearing before the administrative agency. Alternative pleadings, and even inconsistent alternative pleadings, have been permitted and are recognized. Consequently, this should not be a problem at the administrative hearing level.
The opinion made reference to Family Center Drug v. North Dakota State Board of Pharmacy, 181 N.W.2d 738 (N.D.1970), wherein the court said:
“It is our view in support of that conclusion that if this constitutional issue is to be considered, it should be considered only after it has been adequately and properly briefed by both sides and after it has been submitted in the first instance to the trial court for its determination.” 181 N.W.2d at 746. [Emphasis added.]
The reference to “the trial court” obviously must have meant “trial level,” or the administrative agency, otherwise it would not fit the situation under discussion because the court had under consideration an appeal from an administrative agency. The same result was reached in Benson, infra.
On the scope of and procedure on appeal from determination of an administrative agency, which apply to both the district court and this court, § 28-32-19, NDCC, in part provides as follows:
“After such hearing, the court shall affirm the decision of the agency unless it shall find that any of the following are present:
1. The decision or determination is not in accordance with the law.
2. The decision is in violation of the constitutional rights of the appellant.”
Neither of these provisions, without straining, are broad enough to cover the constitutionality of a basic statute. The term, “not in accordance with law,” obviously must refer to the law administered by the agency and does not imply a constitutional question. Subsection (2) refers to the decision and not to the basic statute which is being administered by the administrative agency. I construe this subsection to have reference to proceedings leading up to the decision or to contents of the decision which violate the constitutional rights of the appellant, as distinguished from the constitutionality of a basic statute which is administered by the administrative agency.
In Benson v. North Dakota Workmen’s Compensation Bureau, 250 N.W.2d 249, 250-251 (N.D.1977), we said:
“. . . while Section 65-10-01, NDCC, of the Workmen’s Compensation Act provides for appeals to the district court from the Bureau’s decision, the ap-pealable issues under the Act do not include the constitutionality of the Act itself. . . . The issue of the constitutionality of the agricultural exclusion was not raised before the Workmen’s Compensation Bureau, and therefore it cannot *135be a part of that agency’s record filed with the district court on appeal.”
Allowing a challenge on the constitutionality of a basic statute for the first time on appeal from an administrative agency’s decision as proposed by the majority opinion would in effect give a greater standing and recognition to administrative agencies’ procedures than to procedures in the district court from which an appeal is taken to this court. The court has repeatedly held that constitutional questions not heard in the trial court will not be heard on appeal. In Odegaard v. Craig, 171 N.W.2d 133 (N.D.1969), this Court said the rule is elementary.
If the constitutionality of a statute should be allowed to be raised for the first time on appeal, then the Legislature should so provide by amending § 28-32-19, NDCC, or in the alternative the Legislature should authorize and direct the administrative agencies to consider a constitutional question and render a decision thereon.
For the foregoing reasons, I respectfully dissent from the majority opinion.
PAULSON, J., concurs.