
    State of Missouri, Respondent, v. H. G. Gilmore, Appellant.
    St. Louis Court of Appeals,
    April 20, 1897.
    Jurisdiction, Appellate: constitutional question. A prosecution against defendant for maintaining a milldam without providing the ehute required by section 7023, Revised Statutes 1889, where defendant contended he had acquired a prescriptive right to maintain the dam in its present condition before the enactment of the law under which he was indicted, and- denied the power of the legislature to deprive him of that right, or to attach conditions to its free enjoyment, raised a constitutional question, not within the jurisdiction of this court to determine.
    
      Appeal from the Christian Circuit Court. — Hon. James T. Neville, Judge.
    Transferred to supreme court.
   Bland, P. J.

The undisputed testimony in this case is, that the defendant is maintaining a milldam in Christian county without providing the chute required by section 7023, Revised Statutes 1889. The dam was lawfully erected in the year 1858 or 1859, and has been maintained since that date. Section 7023 was first enacted in 1881. The defendant contends that he acquired a prescriptive right to maintain his dam in its present condition before the enactment of the law under which he is indicted; that this prescriptive right is valuable as a property right, and he denies the power of the legislature to deprive him of this right, or to attach conditions to its free enjoyment, under the exercise of its powers to regulate the police of the state. This raises a constitutional question, and is not within the jurisdiction of this court to determine. Hence we transfer the case to the supreme court for decision.

All concur.  