The opinion
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GRAVES, J.
(concurring). — I concur in the opinion of my learned brother, but write these few lines to emphasize the one fact that the constitutionality of the law is not in this case. This is an original proceeding here. It must be governed by the general rule (applicable to all cases being tried in the first instance) that the hearing must be confined to the issues raised by the pleadings. There can be no distinction drawn as to the one application of the general rule. We are hearing the case per force of our original jurisdiction, just as circuit court’s hear and determine cases. The same rule of trial procedure applying i. e. (1) that the only triable issues are those made by the pleadings, and (2) that if a constitutional question is relied upon it must be raised at the earliest moment. In this case the earliest moment would be in the answer of return. It was not raised there. It cannot rightfully be raised at an untimely and later period of the trial in brief and argument. With these additional suggestions, I. concur in the opinion of my learned brother, without the discussion of other questions which I think would be as fatal to respondents upon the merits.
Walker, J.,
concurs in these views.