The point is made by appellant that Secs. 40 and 41, Ch. 114, R. S., are invalid because repugnant to the constitution.

Such a question must be presented to the Supreme Court and we have no jurisdiction to pass upon it. When the point is made in apparent good faith and must be disposed of in order to decide the case, we must upon our own motion decline to consider it. Practice Act, Sec. 89, as amended in 1879; St. L. T. Co. v. Canty, 103 Ill. 423; Marion Co. v. Lear, 108 Ill. 343; Wright v. People, 92 Ill. 596.

The appeal will be dismissed with leave to withdraw record, abstracts and briefs.

■ Appeal dismissed.