(dissenting).
I dissent. The defendant was found guilty of an ordinance violation in the municipal court. He appealed to the district court under the provisions of Section 40-18-19, N.D.C.C. This section provides that an appeal may be taken from a judgment of conviction in the municipal judge’s court to the district court in the same form and manner as appeals are taken and perfected from a judgment of conviction of a defendant in justice court. The appeal is taken in accordance with Sections 33 — 12— 34, 33-12-35 and 33-12-39, N.D.C.C., and shall be tried in accordance with Sections 33-12-40 and 33-12-41, N.D.C.C., which statutes govern appeals from justice court. The appeal by the defendant transferred the action to the district court from the municipal judge’s court for trial anew, regardless of any ruling of the municipal judge. The defendant, pursuant to the right granted under Section 33-12-40, N. D.C.C., moved for a dismissal of the complaint on the ground that the facts stated therein do not constitute a public offense. The motion for dismissal was premised upon the claim that the ordinance is unconstitutional. The district court granted the defendant’s motion and ordered a dismissal of the complaint on the basis of its determination that the section of the ordinance under which the defendant was charged is unconstitutional. The city has attempted to appeal to this court from the district court’s order of dismissal. The defendant moved, in this court, for a dismissal of the appeal upon the ground that the city is without statutory or constitutional authority to perfect an appeal to this court and, therefore, we do not have jurisdiction.
Section 86 of the Constitution provides:
“The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.”
Therefore, unless some method be prescribed by law whereby this court may exercise jurisdiction of this appeal, we cannot, by judicial fiat, assume jurisdiction. The right to appeal is not conferred by the Constitution but may be exercised only as prescribed by statute. There is no right to appeal in the absence of a statute conferring such right. State v. Bauer (N.D.1967), 153 N.W.2d 895.
The ordinance under which the defendant is charged provides for a penalty, which may be in the form of imprisonment, and prohibits an offense which is, likewise, prohibited by State law, as has been pointed out in the majority opinion. Such ordinance, therefore, is criminal in nature and criminal procedure applies. City of Minot v. Whitfield (N.D.1955), 71 N.W. 766.
A criminal action for an offense prohibited by State statute is prosecuted in the *547name of the State of North Dakota. Section 29-01-03, N.D.C.C. However, although Section 33-12-40, N.D.C.C., transfers the action to the district court for trial anew, it is not the exercise of original jurisdiction by the district court. City of Minot v. Davis (N.D.1957), 84 N.W.2d 891. Thus the city will continue to prosecute the action as plaintiff at the trial anew in the district court. For this reason, the statutes providing for appeal by the State in criminal actions are not applicable. There is no statute providing for appeal from the district court to the supreme court by the city in a case such as this. Therefore, there is no method prescribed by law whereby this court may exercise its appellate jurisdiction and it is my opinion that the appeal should be dismissed.
The order dismissing the complaint, from which this appeal is taken, was made under Section 33-12-40, N.D.C.C. Therefore, if the criminal appeal statutes governing the State were applicable, the order, nevertheless, is nonappealable because of the limitations of Section 29-28-07, N.D. C.C. This question was settled in State v. Bauer, supra, in which we held that an order made by the district court dismissing the complaint, under Section 33-12-40, N. D.C.C., is nonappealable.
I do not agree that Section 89 of our State Constitution would be thwarted because the Legislature has not conferred appellate jurisdiction upon this court by statute in every case where a constitutional question is involved. It appears to me that the same argument can be made as to any other question that may arise in a lawsuit. I see no magic in the number “four” as opposed to the number “three.” It requires a majority of the five judges of this court to pronounce a decision in any case.
KNUDSON, concurs in the dissent of the Chief Justice.