This proceeding was instituted by the State against the appellee upon affidavit and information filed by the prosecuting attorney, under and by virtue of sections 1 and 2, of an act approved March 1, 1891, Acts 1891.

The sustaining of appellee’s motion to quash the affidavit and information is the only error assigned.

The appellee’s counsel seek to sustain the ruling of the circuit court upon the contention that the statute upon which the prosecution is founded is unconstitutional and invalid, and have, for that reason, filed the proper motion to transfer the cause to the Supreme Court.

We are of opinion that this motion must be sustained. Benson, Admr., v. Christian, 2 Ind. App. 599, 129 Ind. 535.

The clerk is, therefore, ordered to transfer the cause to the docket of the Supreme Court.