The reason why I considered the question of constitutionality of Act No. 43 of 1912 as an important issue, in my dissenting opinion, is that the construction which must be given to the act in order to hold that the grand jury or the district attorney may define the crime in the bill of indictment makes the act unconstitutional. In such a case the question of constitutionality of a statute arises necessarily, and without being specially pleaded. But the main point which I made in my dissenting opinion is that, even if the statute could — without violating the Constitution — confer upon the grand juries and the district attorneys the authority to define the crime in the bill of indictment, the grand jury and the district attorney have not defined any crime in the indictment in this case. The transaction *Page 49 as described in the indictment was not essentially a fraudulent transaction, because, as far as the allegations go, there was no false or fraudulent pretense or representation.
I concede that I did go further in my discussion of the case in my dissenting opinion than the attorneys went in their arguments and briefs; but I never feel obliged to limit the method or extent of my analysis of a case to the method and extent of the arguments made by the attorneys in the case.